The Small Places

Get lost in mental capacity law at Autonomy Summer School!

2012-03-07T03:43:00.000-08:00

If you're interested in, affected by, or use, the Mental Capacity Act or the Mental Health Act, then I can't recommend enough that you get over to the Essex Autonomy Project webpages and check them out. The Essex Autonomy Project is based in the Philosophy Department at the University of Essex. Their well researched and clearly written Green Papers and Research Briefings give excellent summaries of issues in mental health and mental capacity law, often providing interesting nuggets of historical information, tracing the evolution of ideas like 'best interests' and the 'inherent jurisdiction', and even introducing a comparative flavour with descriptions of practices in other jurisdictions. My personal favourite is the report on the history of consent, which I'd make required reading on any medical ethics course.

But aside from producing freely available and high quality resources on mental health and capacity law, one of the best things about the Essex Autonomy Project are their events. Of course, there are loads of events for those with an interest in mental capacity and mental health law, but being organised by philosophers these have a rather different flavour. In part this is because they can, as philosophers, help to clarify ideas and concerns and point to solutions suggested by philosophers. There's something very therapeutic about philosophers' ability to take your incoherent rumblings about a particular problem in law or social care, and transmute it into a clearly articulated "issue". But actually, I think the truly exciting thing that EAP can offer comes from their unique social position as philosophers. The Mental Capacity Act and the Mental Health Acts straddle multiple social tensions - tensions between disabled people and professionals, tensions between different kinds of health and social care professionals, tensions between lawyers and health and social care professionals... As philosophers, the EAP staff somehow manage to transcend those differing perspectives, those tribal outlooks, those disciplinary blinkers, and it leaves them in a unique position to mediate discussions between people from a range of backgrounds. At the summer school I attended last year the quality of the teaching was really high (on both law and philosophy) and I learnt a lot of new things, but I can honestly say that it was the space for well mediated discussion and debate from a whole range of perspectives that really excited me. The experience was so much more interactive than traditional conference style learning events, and the debates and conversations were continued in the evening (in a pub in the rather charming village of Wivenhoe). I have a particularly happy memory of climbing over stiles and fields on a starlit night, with a small tipsy army of social workers, doctors, lawyers, philosophers, so busy chattering about liberty and autonomy they got lost in the woods.

Anyway, if you'd like to get lost in mental health and capacity law for a few days, consider attending some of their events. I'll definitely be attending the event on capacity assessments, and with such a diverse range of speakers planned I predict fireworks - but the good kind. And if you're working with the mental capacity or mental health act, then I really really really recommend the summer school. No matter what level of knowledge about the Mental Capacity Act or Mental Health Act you have, you'll definitely find it accessible and rewarding. It will involve philosophy, but without the obfuscation.

Neurodiversity, institutions, incapacity

2012-03-04T04:36:00.001-08:00

I've mentioned Amanda Baggs, author of Ballast Existenz, a few times on this blog. For those of you who haven't heard of her she's probably best known for her YouTube film In My Language, which went viral in 2007 and brought Baggs - and the wider Neurodiversity movement - to the attention of the mainstream. If you haven't heard of the Neurodiversity movement, and you have any kind of interest in mental health, then I can't recommend enough that you read about it. There's a pretty good Wikipedia page (and you could also look up the associated Mad Pride and Autism Rights movements). Jim Sinclair has written a history of the movement here; a seminal moment in the movement was Sinclair's delivery of a presentation called 'Don't Mourn for Us', a paper particularly directed at parents grieving their children's autism and hoping for a cure, at the International Conference on Autism. The diagnostic criteria for Neurotypical Disorder from the DSM (diabolic and statistical manual) are a good example of the powerful yet playful activist techniques of the movement, inverting and calling into question dominant ways of thinking about 'mental disorder'. Although the movement finds many supporters among carers and professionals, it is also positioned in many respects in opposition to the orthodoxies of professionals and NGO's purporting to represent the interests of autistic and other groups. Indeed, their celebration of a positive 'neurodiverse' identity sparks such high tensions that some counter-movements blog have sprung up, but they're so vile in content that I can't bring myself to link to them here.

The anti-cure and anti-tragedy tenor of the autism rights movement situates it culturally quite close to the early gay rights movement in certain respects. It certainly has strong resonance with developments in Crip Theory, although a lot of mainstream academic disability rights work has yet to address the specific concerns of the Neurodiversity movement. Some activists within the movement had links to or drew inspiration from figures like the late, great, disability rights lawyer and activist Harriet McBryde Johnson, well known in her home town for picketing fund-raising Telethons that played on the 'tragedy' of Muscular Dystrophy, which McBryde Johnson had. (As a topical aside, pertinent to the recent furore over the Journal of Medical Ethics' decision to publish a paper 'After-birth abortion: Why should the baby live?', McBryde Johnson wrote a frank and fascinating account of meeting and debating with Peter Singer, an Australian philosopher who has argued for infanticide and "euthanasia" of disabled people who do not satisfy Singers' criteria of what it is to be a person. But I digress.) In no small part the movement's growth and prominence can be related to the new possibilities for activism for historically marginalised groups offered by the internet. As disability rights activists over here in the UK have shown, even if you can't get out the house to march and picket because you are sick, because of poverty, because of transport systems not designed to cope with disabled people's needs, you can still rock the boat by writing, by testifying.

Baggs' blog has had a very significant impact on my own life. I first heard about her in 2007, around the time I'd decided to pursue a career in social care, and I began following her blog. Reading Baggs' blog and working in social care turned out to be challenging, to say the least. I remember working in a service for around ten adults in their late twenties or early thirties with "very severe autism". None of the adults there were able to speak (and I doubt if significant efforts were being made to see if they could communicate by other means), and all were subject to round the clock one-to-one supervision, two or three to one if they went out. Every door in that service had a lock, from the cupboards to the toilets, and the staff held the key or the keycode. One man in the service was fitted with a 'harness' (effectively a piece of wide flat tape around his waist, with a lanyard at the end for staff to put around their wrist), and despite repeated criticisms of this in CSCI reports (I later found) and by his social worker, the reality was that he was wearing it most of the times that I worked there. Staff in the service had developed a de facto system of seclusion for when they were tired (from 12.5hr shifts), or the residents "too agitated". They would sit against their bedroom doors, their feet braced across the corridor, so the person in the room could have "time out" (see this on euphemisms for seclusion) and they could have a rest, read a magazine, chat with the other staff. No 'seclusion rooms' for inspectors to see; no records for social workers to read (not that I saw many signs of active social work scrutiny there). 'Outings' usually involved driving round the country lanes in a minibus, a 'trip to McDonalds' involved eating drive-through food in the car park without getting out of the minibus, but occasionally efforts would be made to take people to the supermarket, for a walk. Some of the staff were kind and enthusiastic and tried to break up the monotony, the oppressiveness, of the regime; others were not.

I never saw anything that paralleled the Panorama film of Winterbourne View, but it wouldn't entirely have surprised me if things like that had occurred among some of the staff. The service users, understandably in a care environment that could have been a ring of Dante's Inferno, were often agitated, often quite violent. Risperidone and other sedating meds were handed out for 'anxiety' (read: aggression towards staff). Quite a macho attitude developed among staff to deal with this, staff sickness and absence due to injury was common, hence the frequent use of agency staff like me. Staff who struggled were seen as not tough enough to cope, rather than struggling with the very outlook, ethos and structure of the service itself. The service eventually shut down amid a cloud of allegations in the local press, nothing was ever made public. I had complained about the service to my agency, and they stopped sending me there. I don't know if they passed on the allegations I made to them; I'm not sure it would be in the interests of an agency to whistleblow about their customers. I hadn't in fact heard of CSCI until after I left, and I do wonder how many care staff know how to whistleblow even if they are able to identify as abusive practices that might be sanctioned and encouraged by managers. As a care worker at that time I had no idea what made that service legally problematic, had no idea what a 'safeguarding alert' was, no idea about regulation and whistleblowing. As staff we took our cue from management as "experts" in care, and management clearly regarded this as a normal and appropriate way to "care" for adults with severe autism. In my gut I just knew something wasn't right about that service, but I had no external point of reference to help me formulate that claim. Except Baggs' blog. Because Baggs' blog helped me to realise that we were failing to treat service users as people, people who might feel just like anybody else would if they were subject to constant control, sanction and coercive interventions with body and mind from an ever-changing cast of authority figures they had no control over. The only way to make sense of working in a service like that is to imagine the people it 'serves' are not like you, would not feel like you would if you were treated like them. The power of Baggs' blog is in challenging this assumption.

Most people who have worked in social care for some time could tell you horror stories about services like this. Services like this are, in fact, what I thought the deprivation of liberty safeguards were set up to deal with. Services like this are what I think of when people talk about care in the community and supported living being as if they've solved all the historical problems of institutionalisation and oppressive regimes in the long-stay hospitals. But in a post on institutions Baggs' makes a really important point, that we shouldn't take the view that only services that approximate Winterbourne View pose significant problems from the perspective of institutionalisation and autonomy:

I’m looking at a webpage with links to reports about human rights abuses in psychiatry. I could read these reports, but they’d just make me angry. Not the kind of productive anger that makes it easier to write stuff and change things, but the kind of futile undirected rage that would tear me up inside, make me kick doors and yell at my friends. I already know about these things, and don’t need to be reminded, but what we’re reminded of in the first place is selective. There are tremendous human rights abuses going on in certain institutions, yes, and they need to be fixed as soon as possible. But the nature of these reports worries me. They make it look like if you just cleaned up the walls, gave the inmates food and medical care, and stopped beating people, that these places would be acceptable. While these are basic human needs, meeting these needs does not mean freedom. It doesn’t even mean freedom from abuse.

Institution survivors are all too willing, sometimes, to share what seem like the worst of our horror stories. I don’t know about everyone else, but I do it because those abuses are the most tangible. It is easier to write about the mark of drugs and electroshock on the brain or restraints and beatings on the rest of the body than it is to write about the mark of the institutional environment and psychotherapeutic control on the mind. The former are solid and quantifiable; the latter are elusive, insubstantial, and sometimes more terrifying and longer-lasting.

I have a recurring nightmare. I am in a beautiful building with a hushed, playful atmosphere. I have been there as long as I can remember. Everything I could possibly need is there. There are no locks on the doors. People follow me everywhere, but just out of sight, to give me the illusion of freedom. They want only the best for me. I can go outside and play in the woods, and I climb trees. And they treat me like a child. Everything is controlled perfectly. Nothing seems to be wrong, but nothing seems to be really right, either. Everyone is very sweet and very kind and very nice and very forgiving, but there is no freedom. Anywhere. This makes the apparent happiness of the place empty, shallow, and false. That, to me, is the essence of the intangible horrors I fear. Only when I wake up from this nightmare do I realize it’s a nightmare, and that in turn makes it all the more frightening.

Baggs wrote a more recent post on 'What makes institutions bad?' echoing similar themes.

When I started this post I'd actually meant to draw readers' attention to a more recent post Baggs wrote about guardianship, which raises all kinds of interesting questions about capacity, substitute decisions, trust and representation. I was going to write about several points Baggs made about guardianship and discuss them in relation to the Mental Capacity Act 2005, and discuss an earlier post where she talks about the effects of one's autonomy being ignored on one's sense of self. But I think Baggs' posts speak for themselves really, and don't need me to explain the points she makes so eloquently herself. I find her work, illustrated with fine detail and concrete examples, with the authority of first person experience, a far more powerful problematisation of 'substituted decision-making' mechanisms like the Mental Capacity Act 2005 than the rhetorical and abstract arguments often made in lawyerly writings on disability rights. Her work has a profoundly unsettling effect for those working with institutional forms of care, with particular ideas of mental disorder and incapacity.

The legal establishment and the "right" to Independent Living

2012-03-01T03:17:00.001-08:00

It's sad but ironic that the day before the Joint Committee on Human Rights (JCHR) launched its report on the rights of disabled people to independent living under Article 19 of the Convention of the Rights of Disabled Persons, the legal establishment confirmed that it was going to ignore the most important treaty on human rights for disabled people for a bit longer. In NM, R (on the application of) v London Borough of Islington & Ors [2012] the claimant was in prison and had "significant learning disabilities" [2], and two councils were squabbling over who would have to assess and meet his community care needs when he came up for parole. NM had sought judicial review of Islington's refusal to conduct a community care assessment under s47 NHS and Community Care Act 1990, and they were refusing on grounds that he was not 'ordinarily resident' in Islington. He failed in his claim, and I won't discuss the detail of the court's analysis of domestic community care law here (although Allan Norman of Celtic Knot has done a great job of that here and pointed out the flaws and worrying consequences of the ruling). What is interesting is that the claimant had hoped to rely in part on Articles 19 and 26 CRPD - the right to independent living (19) and the right to habilitation and rehabilitation (26). From paragraphs 98-107 the court considers whether the CRPD can be relied upon in domestic courts and concludes it cannot because:

In UK law we operate what is called a 'dualist legal system', which means that if the state signs and international treaty it cannot generally be relied upon and enforced by the subjects of that state in domestic courts, unless it is 'incorporated' through additional legislation. The Human Rights Act 1998 (HRA) is an example of 'incorporating' an international treaty (the European Convention on Human Rights, 'the Convention') into domestic law, so it can be relied upon in court. I say 'generally' because there's all kinds of complicated detail, in particular around EU law, and also courts may use a treaty to determine what a state 'intended' a given statute to mean if it is ambiguous. And so, the court said of the CRPD that it "...is an unincorporated international treaty and so does not have direct effect in English law. It came into force and was ratified by the United Kingdom after the NHSCCA was enacted, so it cannot act as a potential aid to interpretation of that statute in cases of ambiguity." [98] (if you're fascinated by this dualist/monist malarkey, there are some interesting discussions in books by Henkin and Shelton)
Next, counsel for NM tried to argue that the CRPD should be used as an aid to interpretation of the Convention rights (specifically, Articles 5, 8 and 14) which can be relied upon in judicial review claims because of the HRA. Although this would be novel in some respects, the Convention is a 'living instrument' and interpretation is supposed to move with the values and needs of the times (there's a handy list of cases expressing this at paragraph 100). The court agreed that in principle that the CRPD could be used to interpret Convention rights, perhaps when enough European states had ratified it (a list of those that have not is given at 103), or when they had brought their own domestic laws and policies in line with it (I doubt if any have achieved this), or if it was "taken to be a leading international instrument establishing an appropriate standard against which to judge the conduct of member states of the Council of Europe" [102]. The court concluded that the CRPD had "not yet acquired this significance".
The court acknowledged that the CRPD has been relied upon by the European Court of Human Rights (ECtHR) in several cases, and listed a few, but said that the CRPD itself was not 'determinative' in those cases. The court found that 'Domestic authority on the point is still more exiguous', essentially finding that where the CRPD had been mentioned it was more a sort of 'pat on the back' for a ruling that had already been arrived at in other ways.
And so, the court concluded that " I would be very hesitant to conclude that Articles 19 and 26 of the CRPD should be taken to inform the meaning and effect of any of Articles 5, 8 or 14 of the ECHR in the direct and extensive way suggested by [NM's counsel]"

My good friend Emily, who is studying the ratification process of the CRPD in Cyprus (a 'monist' state, where treaties can be relied upon directly in court) often asks why the CRPD is so woefully neglected in UK legal life: Emily, this is why. Because we have a legal system where politicians can run around signing treaties promising aspirational rights to their citizens, without creating means for them to rely upon them in court (although, as Emily will point out, they will be able to complain to the UN directly through the Optional Protocol complaints mechanism). A consequence of this is that the CRPD has generally been ignored by the legal (and medical, and social care, and political) establishment, because although it poses in many ways very significant problems for various of our laws and policies (as the JCHR report showed), nobody can rely upon it in court. Whereas in countries with monist legal systems, no doubt, laywers and judges will be scrutinising the CRPD for ways in which it might be used by citizens of those countries, here the CRPD can be put on the shelf to be brought down once everybody else starts taking it seriously. I'm sure there are terribly good reasons for dualist legal systems. I'm sure all those treaties we've signed up to, full of vague and fuzzy principles because that was the only way to get all those states to agree, get into a terrible tangle with each other and with domestic law when 'brought home'. I'm sure at a time where new legislation should be measured by the bookshelf metre it's probably a relief to practitioners of all shades not to have to learn acres of international law as well as their specialist area. But still, I can't help but wonder what an unenforceable right is all about.

This case is not the only sign that the CRPD is not taken especially seriously in UK public life. In my own field, despite the fact Article 12 and Article 14 pose very, very significant problems for the Mental Health Act 1983 and (I think) elements of the Mental Capacity Act 2005, these issues are barely ever mentioned in textbooks, research papers, conferences, policy documents, or even chats in the pub involving lawyers and health and social care professionals working in this field. Is the CRPD just too challenging for us? Peter Bartlett has written:

'There is a risk that psychiatric professionals simply write the most challenging aspects of the CRPD off as absurd, or adopt a somewhat hurt and defensive posture. That would be unfortunate as the human rights principles on which the CRPD is based are sound, and are likely to be broadly shared by most members of the psychiatric professions. It also ignores the problem that the existing justiﬁcations for compulsion are not particularly clearly articulated in a way that takes into account the political and social changes of the past 30 years. Aspects of the CRPD may seem extreme, but they are the result of a consistent approach to human rights in this area. As such, they warrant the intellectual engagement of psychiatric professionals. If there are reservations about the approach propounded for the CRPD, it is for users, practitioners and others in the ﬁeld to come up with an equally clear and intellectually defensible alternative.

And more recently Phil Fennel and Urfan Khaliq wrote:

Among the community of international human rights lawyers, there is a perception that although all treaty bodies are legally equal, in reality some are more equal than others.

They go on to suggest that this might be related to the origins of the treaty, and the composition of the treaty bodies:

It is not a coincidence that, in international law circles, the most respected of the treaty bodies has historically been the Human Rights Committee, whose members have included some of the most eminent and highly respected international lawyers of their generation(s) and the quality of the Committee's legal analysis has been vastly superior to that of some of the other treaty bodies. However regrettable this may be, a treaty body such as the Disability Rights Committee, which has a large number of service users as Committee members, will struggle to dispel doubts among states parties about the (il)legitimacy of how they carry out their functions.

And so, the very feature of the CRPD which in the eyes of many disabled people and their supporters makes it credible and significant - the inclusion of disabled people ("service users") in the drafting and the treaty Committee - may make it less credible in the eyes of the legal establishment, because it hasn't got enough hotshot lawyers to it's name.

Perhaps I'm being a bit too pessimistic about this. The CRPD has been taken up, and is being taken up increasingly, by NGO's and organisations like the JCHR and the Equality and Human Rights Commission. The UK has at least signed and ratified it, and produced its first report on its efforts to implement the treaty (whatever one might think of the quality and accuracy of that report). The CRPD is causing some of us to lose sleep, and I know there are events coming up where Article 12 and other CRPD rights will be increasingly discussed and debated (one is the Essex Autonomy Project's event on capacity assessments - I don't know if it's full yet, but I cannot recommend it highly enough if it's not - and it's free; the other event I know of I'll post more about when details are confirmed). Most importantly, the CRPD is causing many of us to think, and rethink; it gives us new and important questions to answer. But it's definitely not easy.

These things take time, and whatever else the CRPD is slowly beginning to prompt debate about issues like the right to independent living, what 'independent living' looks like, like whether it is ever acceptable to detain a person on disability related grounds (as opposed to more general risk related grounds), whether 'substitute decision-making' mechanisms like the Mental Capacity Act 2005 are morally and politically objectionable. These are debates that have long taken place in the disability rights world, but perhaps the CRPD is helping them to rear their heads in new places - in courtrooms, in staffrooms, at conferences, in the wider political arena. Yes the courts in cases like this are not bound by the CRPD, but although the route for this to happen will no doubt be long and twisty there are signs that in future, indirectly, they might be. Cases like Stanev v Bulgaria (2012) were surely heavily influenced by the debates around Article 12 CRPD, and no doubt future ECtHR cases will consider it as well. But it would be helpful, I think, to see the domestic legal establishment play their part as well. I was very disappointed that the Law Commission were so dismissive of the right to independent living in their Adult Social Care report:

4.36 At consultation, a principle based on independent living was often seen as a means of establishing enforceable legal rights to services. In our view, this is not the purpose of statutory principles. Furthermore, this concept is covered adequately by Articles 8 and 19 of the United Nations Convention on the Rights of Persons with Disabilities. We agree that a principle based on an assumption of home-based living would not be suitable to be included as a principle in the statute. The key issue should be the person’s wishes and feelings, and in effect this principle could skew choice in one particular direction.

4.9 A small majority of consultees who expressed a view argued that the statute should include a principle based on independent living, often on the basis that it would ensure rights to full citizenship for disabled people. However, others argued that independent living is too subjective, and could clash with the choice and control principle if, for example, a disabled person wants to be cared for in a communal setting.

That rather brisk analysis is not what I'd expected from a body as full of talent and expertise as the Law Commission. The JCHR today, rightly, pointed out that 'independent living' is not the same as home based living, stressing that Article 19 is about having a choice of where and how one lives, and not being 'obliged to live in a particular living arrangement' [59]. Ahh, but there's the rub isn't it? Real choice costs money, and certain kinds of living arrangements are much cheaper and easier for public authorities to provide than the living arrangements those who are not disabled and not reliant on public support to provide are able to enjoy. That, essentially, is what the JCHR's report is all about. I'm sure the Law Commission understood this was one possible interpretation of Article 19, but perhaps they also thought that it was just too radical, too expensive, to expect public authorities to make this a reality. Politics, not law. Because at base, that is all the CRPD is about. About giving disabled people the rights to enjoy their lives in the same ways that non-disabled people can, even if that means extra support has to be provided to enable them to do so. It sounds so simple doesn't it?

Further Reading

Baroness Jane Campbell wrote about the danger of undoing the progress the disabled people's movement have achieved over the last 30 years for The Guardian. Her piece emphasises the fragility of independence in relation to bureaucratic authority:

If my local authority cuts my care package or demands I transfer to NHS care (because they regard using a ventilator as the trigger for health services), I lose control of my life. I might have to leave parliament, or give up work altogether (because I need social care direct payments to do everything, from eating a sandwich to delivering a speech). I am only a few bureaucratic decisions away from returning to the inequality I endured at 18. It wouldn't take long to transform all my relationships with my colleagues, partner, family, friends into one which gives little or nothing to anyone. Everyone loses.

Neil Crowther worked as a specialist advisor on the JCHR inquiry, and wrote about the JCHR report here, he comments:

...what was revealing about the Inquiry was how little awareness, understanding and employment of the Convention there is in the UK. Only a small minority of witnesses made reference to the Convention in their evidence, despite the Inquiry being conducted by the Parliamentary human rights Committee and the terms of reference clearly framing the inquiry as being about Article 19 of the UNCRPD. As the report states, the Convention has more teeth than people - including the Minister for Disabled People - realise.

And the Mental Disability Advocacy Centre in their blog on the report also wrote that 'the CRPD is hard law, not soft law', commenting:

“This finding is of international importance”, said Oliver Lewis, MDAC Executive Director, “Our experience is that many governments are of the view that the CRPD is nothing more than a policy nicety, rather than a treaty which sets out legal obligations which governments must fulfil.”

An invidious position

2012-02-23T08:41:00.001-08:00

As you may have already heard, the much-maligned Chief Executive of the Care Quality Commission (CQC), Cynthia Bower, resigned today. I think most would agree this wasn't so much a matter of "if", as when, since her ongoing association with the organisation was reputationally untenable, and likely to be more so once the Mid-Staffordshire Inquiry report is published. Although I'm no fan of Bower's, I'm not especially optimistic about the organisation's future without her. The problems for CQC are largely structural and political; it's not that there aren't "personality" issues, rather that the politics will shape the personality that can head the organisation.

A change of leadership won't be able to turn around the juggernaut of a light-touch and poorly-resourced regulatory model. I do feel that what is missed in the press's feeding frenzy on Bower herself (and Williams, to a lesser extent) is how far the problems at CQC relate to the way it was set up. A few months ago I watched Labour MP Margaret Hodge cross-examining the CQC's leadership in her role on the Public Accounts Committee, but Hodge herself voted for the legislation that birthed the CQC in its current form. Like genetics, a statute won't determine everything about the creature it produces, but it does go some considerable way towards shaping it. The Health and Social Care Act 2008 did not seek to produce a body that could drive through improvements in the sector (so much as remedy failings), did not create a mechanism for handling complaints, and omitted several useful powers that the CQC could have done with to deal with problematic providers. And the Department of Health - under red banner, as well as yellow and blue - must bear some responsibility for the shape the CQC has taken. Yet I'm sure they're pretty relieved when Bower and Williams take the flack for a failed regulatory model.

By sheer coincidence, when I read about Bower's resignation I was flicking through the closing submissions of counsel to the Mid Staffordshire Public Inquiry on the CQC. I really recommend reading this document, it's full of fascinating snippets and detail about the CQC's structure. I thought I'd reproduce for you what Dame Barbara Young said when asked why she herself had resigned from the position of CEO of the CQC (paragraphs 379-80):

Q. Why did you resign?

A. I resigned for a number of reasons. I actually was looking back on my records yesterday, and at the beginning of September I wrote myself a note saying “Get another job” And I think the reason for that was several fold. One was it was clear to me that the model of an independent regulator, regulating services provided by a government minister, was never going to be a satisfactory model. It was always going to be incredibly fraught, because inevitably both the Deportment and ministers were torn between wanting good, strong independent regulation of healthcare and knowing that if good, strong independent regulation of healthcare happened, from time to time they would be put in the dock and found wanting. And I think that tension worried me not a little. I felt quite able to resist it, but I could see that in resisting it there would be constant conflict and that didn't feel good.

Q. When you say that didn't feel good, that is something that any new chair and indeed the chief executive of the CQC is also going to have to face, isn't it?

A. Absolutely, and generally speaking I'm not a quitter. But the second reason also was a weight in the scales, and that was I really believed strongly that we could only do a good job if we were on the ground locally inspecting with rigour and understanding what was happening locally in health core systems and in hospitals that were delivering services. And I knew that we were finding it quite difficult to ensure that that was the case with the resource we had. And I could see further restrictions in resources on the horizon, because by then it was clear that the service was going to share in cuts. And I could also see that that was going to happen at a time when the quality of care was going to be even more at risk than usual as a result of health core cuts in services.

So you’d be a regulator in a very difficult position, with government, accountable to government, but responsible really to the public, with less resource to regulate effectively, and services being more at risk And it just felt to me that that was not a job that my skills were best suited for.

I’m a campaigner. I believe that I’m not satisfied with doing a job unless I can demonstrate that I’m doing a good job for the people I serve. And I believed that the people I served were the public. And I had great doubts that I could do that properly, and so I decided I was going to do something else.

The original plan was that I would get another job. There would be an orderly handover process and I'd go. But to be honest, the whole thing was getting so fraught, in terms of the role of the regulator and how we were regarded, and having now been a regulator in three different departments, three different government departments, responsible for three different government departments, the relationship with the health department was by far the worst by an order of magnitude. And I didn't see any way that it was going to resolve itself. So despite the fact I’m not a quitter, I quit.

More emollient people than me would probably have regarded it as part of the normal come and go between the regulator and their parent department. I found it unhelpful and irksome, and I was very impatient with it, and so personally I think I was the wrong person to do that job. But it was intrinsically because of the way it was set up, reporting to a government minister, regulating services that the government minister had responsibility for, it seemed to me that that intrinsic conflict was always going to be there, and that meant that you probably needed somebody who was much more flexible than me to head up the process. I wasn't sufficiently flexible and smart to do that.

Could arbitration be used for dispute resolution under the Mental Capacity Act and DoLS?

2012-02-20T08:37:00.000-08:00

The appeal mechanism for the deprivation of liberty safeguards (DoLS) continues to be a cause for debate and concern (not least relating to the cost of court proceedings). Several alternative mechanisms for handling disputes under the DoLS have been proposed, some of which I've discussed before and would be keen to explore further (use of guardianship instead of DoLS; 'tribunalising' the DoLS appeals mechanism; mediation of some kinds of disputes). Another option that was proposed last year by Anthony Hurndall of the Centre for Justice is arbitration, which is certainly a novel and interesting suggestion, and one that I have never seen suggested or discussed elsewhere. In his article in The Guardian, Hurndall proposed that mediation-arbitration would have been suitable for a dispute like London Borough of Hillingdon v Neary & Anor [2011]:

Both parties are helped to reach their own resolution through mediation but, where this does not result in agreement, the assessor goes on to make an award (binding under the Arbitration Act). This results in a prompt, cost-effective, legally binding agreement or award in every case, benefiting local authorities and those they care for. Time and cost savings are considerable, — around 80% on legal costs alone.

Use of the service such as this would have spared Hillingdon the heavy legal bills it faced and quickly ensured the council and the Nearys the right result. Reputations and dignity would have been left intact, distress minimised and relationships preserved.

I confess to being somewhat sceptical about the suitability of arbitration for matters concerning the welfare of an incapacitated adult in general, and their detention in particular. However, I know very little about arbitration and my scepticism takes the form of a series of questions and doubts rather than solid legal arguments that arbitration would be inappropriate for such cases. I contacted the Centre for Justice to say I'd be writing this piece, and they said they would they be happy to respond to any questions I raise (and hopefully correct any errors I fall into on this horribly complicated topic). So hopefully this will open up a conversation with those who have more knowledge and experience of arbitration proceedings than I do, who can respond to the points I will raise here. [Edit 22/01/2012: The Centre for Justice have kindly responded in a comment underneath, which I have re-posted at the end of this piece so you don't miss it]

What is arbitration and what kinds of disputes can it be used for?

The Law Society defines arbitration as:

...a formal process in which an impartial third party with specialist background knowledge on the nature of your dispute hears all parties and makes a binding decision to resolve it.

The Law Society comments that it is often used as an alternative method for dispute resolution in disputes relating to building and construction, business and commercial disputes and problems at work. They also comment 'You are very unlikely to be able to take your case to court once an arbitration decision has been taken.' From the research I did when trying to find out more about arbitration, there is nothing in the Arbitration Act 1996 itself that precludes arbitration being used in other kinds of legal disputes, including family law - and presumably also the Mental Capacity Act 2005 (MCA) and the DoLS. Having said that, several commentators have expressed the view that arbitration cannot currently be used in family law (e.g. Carl Gardner; David Hodson). Indeed, the Justice Minister Bridgit Prentice seems to think arbitration does not apply to family Law. I have been unable to find any detailed commentaries on the legal reasons for the claim arbitration could not be used in family law disputes, and in any case a recent excellent commentary in Family Law Week (FLW) on arbitration casts doubt on this a priori exclusion of certain fields of law from arbitration:

There has been a widespread belief among family lawyers that arbitration cannot apply in family law disputes. This is a misconception. There is nothing in the Act or otherwise to preclude arbitration in family law matters. However, there has not until now been any scheme setting out rules within which family law arbitration could take place. For practical purposes this had ruled it out.

The reasons arbitration was not used in family law disputes, it seems, were practical - not legal. The FLW commentary goes on to detail a new scheme for arbitration of certain kinds of family disputes which will have effect from 22 February 2012. Notably, however, the scheme explicitly excludes disputes concerning:

The liberty of individuals
The status of individuals or of their relationship
The care or parenting of children
Bankruptcy or insolvency
Any person or organisation which is not a party to the arbitration.

I am unclear whether these issues are excluded from the scheme for legal or practical reasons, and it's a shame the article does not explain further as it would be directly relevant to the questions I want to consider of whether arbitration could be used for MCA/DOLS disputes. I asked the Centre for Justice if they'd conducted arbitration in any MCA or DoLS cases, and they confirmed they hadn't, and I don't think the issue has been tested in court as yet. I noticed that in Baroness Cox's recent, and controversial introduction of the Arbitration and Mediation Services (Equality) Bill [HL] 2010-12 specifically provides that family and criminal law matters would not be arbitrable. But are criminal matters really arbitrable anyway, or is this just anti-Islamic sound and fury? Who knows, and that's another topic for another blog really, but it does suggest that there is considerable confusion in the legislature about the possible role for arbitration.

Another perspective on arbitration in a family law context comes from this speech by Lord Wilson. He highlights five indicators that an issue is not suitable for alternative dispute resolution, one of which included 'lack of clarity in the law'. This is almost certainly likely to be a problem for some DoLS disputes, given that there are still many technical issues to be resolved regarding DoLS and disputes about the meaning of 'deprivation of liberty' look set to continue. It shouldn't be forgotten, after all, that in many respects Neary made new law, making it doubtful that it was ever an appropriate case to have been settled outside of the High Court, who clarified (perhaps even created) many new legal principles in their ruling.

Difficulties for arbitration for MCA matters

The Arbitration Act 1996 gives the arbitral tribunal considerable powers to make a legally enforceable award. Of particular relevance for MCA disputes:

'The tribunal may make a declaration as to any matter to be determined in the proceedings.' (Arbitration Act 1996 48(3))

and:

'The tribunal has the same powers as the court—
(a)to order a party to do or refrain from doing anything;' (Arbitration Act 1996 48(5)(a))

And so in some respects, it seems to me that the arbitral tribunal could possibly mimic the declaratory jurisdiction of the Court of Protection under the MCA and make a declaration as to whether P has capacity, what course of action is in his best interests, or make any binding orders on any of the parties to the arbitral tribunal.

But, one crucial thing that the arbitral tribunal cannot do, that may pose a serious problem for MCA matters, is bind third parties. Parties to the arbitration proceedings must sign an arbitration agreement to make the outcome binding upon them; I would assume, therefore, that any parties to the agreement must have the mental capacity to enter into it. If not, who would have the legal authority to sign the agreement on P's behalf? Who would present P's case (as opposed to the carer's or the professionals' cases?). Perhaps an appropriately empowered LPA or a deputy might be able to, but there were neither in the Neary case. In any case, if a person had a welfare deputy who disputed the detention then the DoLS could not be used. Or perhaps a litigation friend could sign the agreement on P's behalf, but who could this be? Bear in mind that in disputes like Neary the Official Solicitor usually has to act on P's behalf as the other parties are too embroiled in the dispute to be regarded as impartially acting on P's behalf. If nobody has this legal authority, this seems to me to effectively preclude 'P' from being represented or participating in the proceedings, or being bound by them. By contrast, the Court of Protection Rules 2007 create a mechanism for P to be bound 'as if' he were a party', even if he is not made a respondent to proceedings (Rules 73-4).

Is this necessarily problematic? I have heard it argued that P needn't necessarily be a party to proceedings in the Court of Protection, although I personally find it a little uncomfortable to think of disputes over P's capacity and best interests taking place without P being represented as a party in his own right. I'm sure this will happen increasingly, however, with the Official Solicitor being unable to represent P in care and welfare cases as a result of reaching the limit of his resources. Arguably the Court of Protection's 'overriding objective' to ensure P's interests and position are properly considered would counterbalance that, and the court could in any case still direct reports or evidence to be produced if either party had failed to consider a particular point in relation to P's interests. By contrast, an arbitral tribunal has no such 'overriding objective' to consider the interests of unrepresented third parties. I also wonder whether they would be able to give directions for reports or evidence on highly personal matters that relate to incapacitated individuals who are not a party to proceedings. Without this power to direct reports about P's capacity or best interests, it seems to me the proper authority of the tribunal to pronounce upon those matters may be in doubt.

Aside from these moral and practical objections, inability to bind P as a party raises a further doubt. If carers and professionals have agreed to have their dispute settled by arbitration, but P is not bound by the final agreement, what is to stop the dispute rearing its head again in court with P as the claimant? I suppose an award could direct that family could not assist or encourage P to bring proceedings, but I do wonder how such an award would impinge upon P's rights if P himself is objecting to the disputed decision (as Steven Neary did). And in any case, P might be supported by other means (for example, an advocate) to bring the dispute before a court, and so the legal certainty offered by arbitration proceedings that cannot bind the incapacitated party at the heart of the dispute may be limited.

Can arbitral proceedings satisfy Article 5(4) ECHR?

The DoLS were introduced as a result of the Bournewood case, which found that there was no 'procedure prescribed by law' that could satisfy the Article 5(4) ECHR 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'. Although it is understandable that the case Neary v Hillingdon is sometimes constructed as a dispute between carer and professionals, fundamentally the case came to court as an appeal against Steven's detention under s21A MCA. His father brought that dispute to court as Steven's representative, but for as long as Steven himself were objecting to the detention (and he clearly was), I can't see what authority his representative would have to sign away Steven's own right of appeal to a court. And even if Steven's father had been satisfied that the detention was in Steven's best interests, the local authority would still have had a positive obligation to enable Steven to appeal in his own right: 'there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court' (Neary, [202] - emphasis mine). Two questions relating to arbitration and detention play on my mind, then:

Can taking a dispute to an arbitral tribunal discharge a public authority's positive obligation under Article 5(4) to enable a detainee to have the the lawfulness of their detention reviewed speedily by a court? If not, then there seems to me little point in referring a dispute like Neary to a tribunal, as the public authorities could still be found to have failed to enable the detainee's Article 5(4) rights.
If a dispute over detention has been referred to an arbitral tribunal, and settled such that the detainee remains detained, does this mean they have 'used up' their right of review of detention by a court? And more importantly, can they still appeal against their detention under s21A MCA, or must they now appeal under the Arbitration Act 1996 against the arbitration award? If, following arbitration, they can no longer appeal under s21A MCA then that strikes me as a major disincentive to use arbitration as detainees would lose their 'gold plated legal aid'. In the alternative, if they can continue to appeal under s21A MCA, whatever the outcome of arbitration, then there seems to me to be little incentive for a public authority to use arbitration as it would offer them little legal certainty.

What costs would actually be saved for the parties to the dispute?

Arbitration is not free, and presumably the parties would hope to cover their costs using legal aid for advice under the DoLS? If they were unsuccessful in obtaining public funding for arbitration, however, then there would really be no contest from the perspective of the detainee and their representative since they have an automatic right to legal aid for representation for appeals under the DoLS. Yes, arbitration might be cheaper for public authorities, but if there were any chance that detainees and their representative would have to pay for arbitration then a s21A MCA appeal would make more financial sense for them.

Let's assume funding has been found - what costs would be saved? My costings suggested that a significant proportion of the costs of DoLS appeals comes from paying expert witnesses, often jointly instructed. I can't see how this cost could be dispensed with without also compromising the quality of the decision itself. Presumably solicitors would still be used (I would be very concerned, from an equality of arms perspective, if lay litigants did not use solicitors in arbitration proceedings, given that public authorities would at least have in-house legal staff guiding them). Perhaps counsel would not be used, although I do wonder how many solicitors would feel confident enough in their knowledge of the DoLS not to enlist the help of counsel? And then, of course, court costs. I haven't seen any costings for arbitral tribunals, so it's hard to compare these.

Concluding questions

So, to try to summarise my concerns about arbitration in MCA/DoLS matters, I will put them in the form of the following questions:

Is there any legal reason to believe that issues of the welfare of incapacitated adults and liberty should not be decided by arbitration proceedings?
How could P participate in proceedings, and be bound by the award, if he lacks the capacity to consent to the arbitration agreement?
What sources of funding would be used for arbitration?
If the detained party was unhappy with the outcome, would he then be precluded from appealing against detention under s21A MCA?
What would the qualifications and expertise of the arbitrator be in relation to DoLS?
Would the parties still use a) solicitors, and b) counsel, to guide them?
How much, typically, does arbitration cost?
Would arbitration proceedings satisfy the positive obligation under Article 5(4) that incapacitated detainees must be enabled to appeal against their detention in court?

If readers have experience in using arbitration for MCA disputes, or you could respond to one of more of these points, then please feel free to use the comments section below or email me (lvs202@exeter.ac.uk) if you would like to write a guest post.

Response from Anthony Hurndall, Centre for Justice

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.

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.

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.

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.

We accordingly see no reason why the issue between local authority and individual should not be dealt with in this way.

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.

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.

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.

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.

Anthony Hurndall

Comments on the Centre for Justice's Response

I'm delighted the Centre for Justice have taken the time read and respond to this post. I think Anthony Hurndall raises a very interesting question about the authority of representatives under the DoLS, which I would like to take up in more detail. In a brief response to the point about 'equality of arms' and resources though, any appeals to court under the DoLS do come with 'gold plated' entitlements to legal aid for the detainee and their representative. So they would not be placed at a disadvantage on resources grounds. However I can see the very real attraction of a less formal process, more local, more 'tailored' to the needs of the parties than a full on court hearing. I can definitely see the attractions of mediation for intractable disputes between families and professionals. However, I think the issues around proper authority to enter into binding arbitration are quite legally problematic where incapacitated adults are concerned.

According to the DoLS Code of Practice the role of the representative is to keep in contact with the detainee, and to 'support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection' [7.2]. In part, this role of triggering an appeal is so important because unlike under the Mental Health Act 1983 there is no automatic process in the DoLS for a detention to be reviewed by the court. However, this role envisaged for the representative, to support a person in appealing to court, doesn't straightforwardly amount to either a power or a responsibility to activate or dispose of the Article 5(4) rights of detainees.

If we go back to the schedules, the role of the representative is a bit murky; they have no legal responsibilities and surprisingly few powers. A representative can only be selected by a supervisory body if they believe they will fulfil the role of maintaining contact and helping a person to exercise their rights (Schedule A1 s140). Then there are various duties upon the supervisory body and the managing authority to keep the representative informed. And then the representative has rights to trigger a review (Schedule A1 s102). That's about it. They have no unique rights to appeal against detention under s21A MCA, although, as a representative they will have "gold plated" entitlements to legal aid to appeal, and they won't need permission from the court, which others objecting to the detention might not.

Nowhere in the schedules is a representative empowered with a similar authority to a donee of an LPA or a court appointed deputy. And nowhere in the schedules is it suggested that the decision of a representative to pursue an appeal or not can impact upon the detainee's own right of appeal. In fact, case law suggests that a detainee has a right to be supported in their appeal regardless of the views of the representative; in the DoLS case A v A Local Authority [2011] the representative was switched precisely because they didn't help the detainee to appeal:

A objected to this continued deprivation of his liberty and his objection was passed to the Relevant Person's Representative (RPR), who, at that point, was S. However, S did not support A in exercising his right to challenge the authorisation, with the result that a different RPR was appointed. [4]

Despite the detainee lacking capacity, the implication is that if he objects his right of appeal should be supported, regardless of what the representative thinks, and the representative is not empowered to waive that right. Representatives might choose not to exercise the right of appeal on the detainee's behalf, and they cannot be forced to, but in those circumstances, I would suggest it is incumbent upon the supervisory body to ensure that the detainee is 'enabled' (as per Neary [202]) to appeal. They could do this either by appointing somebody else to appeal on the detainee's behalf, or by referring it to court themselves.

Whether or not the supervisory body could decide to 'enable' the detainee's appeal to be heard through arbitration is a very interesting question. My guess is that the issue of empowerment would still arise, however, as the detainee's Article 5(4) right is to a court appeal, and there would surely be Article 6 issues for a process where his representative has no lawful authority to agree to a binding arbitration on his behalf. To put it another way, a representative is just a member of the public who is allowed to read some confidential documents, request a review and support somebody in their appeal (if they choose to). They are not an attorney or deputy for an incapacitated adult. They could not sign a tenancy agreement, refuse or consent to surgery on their behalf, sign a cheque for them, etc, so it would be odd indeed if they enter into binding agreements that sign away a detainee's rights under Article 5(4). Whether or not this issue of proper legal authority would apply to arbitration of other disputes involving incapacitated adults is also an interesting question. My guess is that it depends on how far one can draw the analogy of arbitration of these kinds of disputes with Court of Protection proceedings where P is not joined as a party, and whether arbitration can offer the same safeguards to justice for P in such circumstances as the court itself does.

Allan Norman: Sex, residence, and the capacity to make unwise decisions

2012-02-16T09:40:00.000-08:00

I'm really delighted to host this guest blog by Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice. Allan's post explores how very different real life outcomes can follow a capacity assessment where a person might make an unwise decision, and asks whether we would want the law to be that way if we were the subject of a capacity assessment. Guest posts responding to this question, or on other capacity and social care topics, very much welcomed.

A capacity decision can be, as I tell my students, like a fork in the river. You have to go one way or the other. If a person has capacity, they are allowed to make unwise decisions. If a person lacks capacity, we must make decisions for them in their best interests. Which fork we take is particularly significant if they lead to completely different destinations - that is, the unwise decision that they would have made is the opposite of what we think is in their best interests.

Caselaw is developing some tools for ameliorating the worst effects of this, for example laying emphasis on how a person's previously expressed wishes may form part of their best interests. Meanwhile, I have argued, if you control the capacity question - what is the decision, the making of which has to be assessed - you have significant control over the answer.

In assessing the justness of any law or any decision, I am a fan of John Rawls' Theory of Justice and the Veil of Ignorance: what would we want the law or the decision to be if we did not know in advance what position we might ourselves occupy in society? Some mental capacity and best interests decisions seem to me to fail that test. Here, I want to highlight a recent decision on sexual relations, and an older decision on residence.

Sexual relations

The sexual relations decision is Re H; A Local Authority v H [2012] EWHC 49 (COP) (27 January 2012). It is a disturbing case, not least because you wonder what unknown past history brought H to her intensely sexualised present day. Among the findings or observations, I highlight in respect of H:

"mild learning difficulties and atypical autism with a full scale IQ of 64" (para 6)
"until 2009 [aged 27], it was never judged necessary for a formal statutory intervention in her life to take place" (para 7)
"she clearly had difficulty saying no but that is not the same as understanding that she had a choice: she understood that but had found it very difficult to practise" (para 28)
"H would struggle [with weighing information, MCA section 3]... partly through an inability to deploy the knowledge she has when (as readily happened) she was sexually aroused" (para 30)

The mental capacity decision is that she lacks the capacity to have sexual relations. While there is no best interests decision as such (because you cannot make such decisions on behalf of someone who lacks capacity, Mental Capacity Act, section 27), "she is currently prevented from having sexual activity with another". Indeed, paragraph 13 does not beat about the bush: she is currently deprived of her liberty in order to prevent her from entering into sexual relations. Hence this case seems a clear example of where the Mental Capcity Act leads to an outcome diametrically opposed to the unwise decision that they would have made.

Where would the Veil of Ignorance have led us? Among the charactersitics of which you would be ignorant in advance would be your gender, your appetite for sexual activity, and your vulnerability. From this original position, I suggest that male and female sexuality would be treated in similar ways; that sexual activity would be broadly permitted and not straightjacketed within an institution such as marriage; and that the law would be rigorous in protecting the vulnerable from sexual exploitation.

If that is right, then where the Veil of Ignorance would have led differently is not so much the mental capacity decision upon which the judgement is focussed, but the outcome thereafter. And it is Rawl's first principle, the liberty principle, that is mainly offended against, "each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others". Arguably, at least, her best interests might lie more in rigorous protection from exploitation (para 9 references include group sex with "much older men" and that "she saw herself as obligated to submit to that which was in fact rape") than in depriving her of her liberty so as to prevent her from having any sexual activity.

Place of residence

Meanwhile, I wonder whether LT, the twenty-something woman in RT v LT & Anor [2010] EWHC 1910 (Fam) (27 July 2010) has yet got home. LT was adopted over 20 years ago by RT. Attempts to label her mental disorder have included "Reactive Attachment Disorder" and "Pathological Demand Avoidance Syndrome":

The decision in this case provides a stark example of where the unwise decision that they would have made is the opposite of what we think is in their best interests. Stark because here it is because she wants to go home so much that she must be denied the right to do so.

Alright, strictly speaking it is not the intensity of her wishes that was determinative, so much as her inability to entertain the counter-arguments. But let me ask you to think hypothetically for a moment. Imagine that, deeply in love, you wish to enter into a lifelong partnership with someone who your family and friends unanimously consider unsuitable for you. You are blind to their faults.

Now in a legal setting, you are being asked to justify why this is your freely made decision. Is there a possibility you will avoid making any concession that might be seen as weakness, a chink in the armour of your certainty, borne of your love or infatuation?

It seems a concerning proposition that we can be legally deprived of what we want because the intensity of our want leaves us unable to acknowledge the force of the counter-arguments. And again, it seems to be a position that it would be hard to arrive at from behind the veil of ignorance.

Since it is the common experience of humankind that we do not know today what disability we may develop tomorrow, and that our children's future is a canvas upon which the feared and unexpected may anytime be painted, stepping behind the veil of ignorance ought to be an exercise we can more easily conceive of here.

From behind that veil, surely we would want support from the State for our endeavours to stay together as a family. Here we have Rawl's second principle in play. the liberty principle, economic inequalities are to be arranged so that they are to be of the greatest benefit to the least-advantaged. In other words, that family receivs an unequal, disproportionate amount of support to stay together because equality for its vulnerable members requires that it be so.

If the framers of the legislation were required to do a Rawlsian justice impact assessment, I wonder what they would have said?

Peers introduce an amendment to close a human rights loophole in social care

2012-02-13T11:50:00.000-08:00

I was interested to see that peers Baroness Greengross and Lord Rix have introduced an amendment to the Health and Social Care Bill that would address certain loophopes in the protection offered by the Human Rights Act to people in receipt of care services. Almost certainly, this amendment is in response to the Equality and Human Rights Commission (EHRC) report 'Close to Home', which expressed serious concerns about the human rights protection of older people receiving domicilliary care services in their own home. The EHRC have called for the closure of a legal loophole, which means that private domicilliary care providers are not 'public authorities' in the meaning of s6 Human Rights Act 1998 (HRA) which, in essence, means they can't be litigated under the HRA by service users for violations of their human rights. I've explained previously how this loophole came to exist, and it's good to see peers and the EHRC taking action on this.

In previous years, several different bills or amendments have been proposed and abandoned that would close the loophole in the protection offered by the HRA for social care service users (see this post, and this, for discussion). The only amendment that was actually passed, in the end, was under s145 Health and Social Care Act 2008, which left several groups of social care service users outside of its protection - including, but not limited to, users of private domicilliary care services. The amendment proposed by Greengross and Rix looks like this:

Insert the following new Clause—
“Human Rights Act 1988: provision of certain personal care and health care services to be public function
(1) A person who is commissioned to provide—
(a) personal care to an individual living in their own home, or
(b) a health care service,
shall be taken to be exercising a function of a public nature in providing such a service.
(2) In subsection (1)(a) “personal care” in relation to England has the same meaning as in paragraph 2 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and in relation to Scotland has the same meaning as “personal care and personal support” as defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 and section 1(1)(c) and Schedule 1 to the Community Care and Health (Scotland) Act 2001.
(3) In subsection (1)(a) and (b) “functions of a public nature” has the same meaning as in section 6(3) of the Human Rights Act 1998 (acts of public authorities).” (Amendment 217A)

Notably, the amendment would cover everyone who received personal care from a domiciliary care service user - both publicly funded and privately funded alike. It wouldn't only cover the kinds of domiciliary care services for older people described in Close to Home, but also 'supported living' style services for younger adults. It would also cover domiciliary care funded through direct payments (although I'm not clear if it would cover individuals working as personal assistants?). However, interestingly, it hasn't sought to remedy other existing loopholes in social care. The Health and Social Care Act 2008 amendment only provided for people placed in residential care under the National Assistance Act 1948, but many people might be funded in residential care under other Acts - for example, they might be funded under s117 Mental Health Act 1983. It also wouldn't cover other kinds of private social care providers, for example children's care homes or residential schools (I do wonder if that's why it's the local authority, not the school, who are litigated in this case?). So the amendment is an interesting one, as it would make a private domiciliary care provider a 'public authority', even if it was providing care under private arrangements where there was no involvement of a public authority. Meanwhile, some people who receive publicly funded social care services, might not be protected. I am unclear whether this is deliberate, or whether there were some other reasons for not including residential care services in the amendment.

Closure of human rights loopholes in social care face two key difficulties:

If they are only meant to cover publicly funded service users, it would require legislation that could somehow pick out this group, which is no mean task when care could be provided under any of a large number of statutes. It's also important to remember that a person could be in receipt of privately funded care, arranged through the state. For example, a person might end up living in a private care home and funding it themselves because of an order of the Court of Protection or under the deprivation of liberty safeguards (see, e.g., this case where a person was forced to pay for their own detention under the DoLS).
They are likely to encounter ideological arguments around the 'privacy' of social care providers. This amendment makes no attempt to distinguish public from private, but I suspect this may be a factor that sank previous amendments which would have made any regulated provider a public authority in the meaning of the HRA.

I personally think it would be desirable to see all care providers covered by the Human Rights Act, because there are many diverse issues that arise in social care that are hard to capture in law in terms other than 'human rights'. I appreciate that this engages all kinds of arguments about horizontality in human rights protection, and there are issues about providers that would be public authorities consequently having limited rights protection of their own. This would no doubt spark all kinds of debate among human rights theorists and constitutionalists, not to mention exercising care industry lobbyists. But I wonder how else we are to protect people's rights in the details of their day to day lives, that can be vulnerable in such a diversity of ways in social care? Of course, the CQC's essential criteria include that people's 'rights' must be protected, but I have never been clear what this means in the context of some care service users having more legal rights than others, because of these loopholes. I suppose the only way this could be tested would be if a care provider appealed against enforcement activity taken by CQC on grounds that people's rights were being violated, but in response to a recent Freedom of Information Act request they confirmed that no such case had yet arisen. Likewise the Local Government Ombudsman (LGO), who hears complaints about care providers. However, I am sure the CQC and the LGO, as human rights public authorities in their own right, would take equally seriously any human rights issues that arose for privately or publicly funded residents in the course of their duties. The key question here is - can they be litigated through the courts?

In any case, the amendment's future is linked to the fate of the Health Bill, and things don't seem to be looking very good for it at the moment...

Read this!

2012-02-07T08:43:00.000-08:00

No time for proper blogging this week, but if you're looking for something to read I really recommend this report on a roundtable organised by the Essex Autonomy Project about the deprivation of liberty safeguards. The roundtable was held in January, and was organised with the help of the Arts and Humanities Research Council and the Office of the Public Guardian, and was attended by lots of people with interest in, and knowledge of, DoLS. I highly recommend the report (and I can confirm it's an accurate report, as I was fortunate enough to bag an invite!).

In other news, if you haven't already read this month's Court of Protection Newsletter from 39 Essex St, then do so. It contains worrying news that the Official Solicitor has reached the limit of his resources with regard to Court of Protection healthcare and welfare cases. He will still accept cases relating to emergency medical treatment and s21A MCA appeals against detention 'other than those brought by the relevant person's representative.' The Court of Protection Rules 2007 require that 'P' has a litigation friend, and given that the OS acts only as a litigation friend of last resort, it is hard to see where another litigation friend can be found for many of these cases. Ergo, it is hard to see how important matters, that will often engage Article 8 rights to private and family life, can access justice. Presumably, if the OS is currently only able to accept s21A MCA appeals that are not brought by P's representative, then it seems possible that P's Article 5 rights could also potentially be infringed. Following the ruling in Stanev v Bulgaria (2012), I think the government should be extremely concerned that adults who are said to lack capacity, or their supporters, may struggle to challenge decisions made about their lives if they are unable to enlist his support for these matters. Clearly the immediate answer to this is for resources to be found to support the Official Solicitor in the important work of his office. In his annual reports the Official Solicitor has repeatedly warned about the climbing workload engendered by the Mental Capacity Act; it seems his warnings have not been heeded.

UPDATE 29/02/2012: A note (pdf) on the Ministry of Justice's website clarifies the situation of the Official Solicitor regarding care and welfare cases. I'll post the relevant sections of his note in full:

The Official Solicitor wrote to the President of the Court of Protection on 15 December 2011 to inform him that he had reached the limit of his resources with regard to Court of Protection welfare cases, he did not mean by this that he had run out of money, but rather that his available staff, (after movement of staff to this area of work and recruitment to the full extent which was possible), to manage this class of case were unable to take on any more of these cases.

As a result of this development the Official Solicitor is unable to accept invitations to act in any except the most urgent cases, namely serious medical treatment cases and section 21A appeals, other than those brought by the relevant person's representative. Section 21A appeals may nevertheless be subject to a delay in acceptance until a case manager becomes available to whom the case may be allocated.

All other cases, once his acceptance criteria are met, are being placed on a waiting list. These cases will be accepted, when a case manager becomes available, in chronological order starting with the earliest placed on the list, unless exceptional priority is given due to this office considering the case to be very urgent or should otherwise be expedited.

In the event that the court is of the view that a case should be considered as most urgent, or should be expedited for other reasons, the court should kindly inform the Senior Lawyers in the Official Solicitor’s CoP Healthcare and Welfare teams, of the court’s reasons and consideration will be given on individual merit.

If at any time another litigation friend is appointed in this case before the Official Solicitor is in a position to accept the invitation the parties are asked to notify him as soon as possible, so that the file may be closed and the case removed from the waiting list.

Nearly Legal: Wychavon revisited

2012-02-02T02:09:00.000-08:00

Back in October I cross posted a brilliant blog piece by Nearly Legal about the ruling in Wychavon District Council v EM [2011], which concerned whether a tenancy entered into on behalf of a person who lacked capacity, without the requisite authority from a deputyship or the Court of Protection, could create a liability for housing benefit. In the initial judgment it was found that it did not, which potentially posed serious problems for many people without capacity to contract in supported housing. I encountered significant levels of concern about this ruling from families and providers alike. Happily, the judgment has been revisited, and Nearly Legal have kindly allowed me to cross post their summary from their blog. The solution arrived at is not quite so neat and tidy as legal purists might like, but it will certainly be a relief to those reliant on supported housing schemes.

Wychavon DC v EM is a double decision, so to speak, by Judge Mark on a housing benefit matter, with broader implications regarding incapacity. In essence, EM is profoundly disabled (mentally and physically). Her parents moved her from a care home, with the support of Worcestershire CC (which also encouraged the understanding that entitlement to HB would follow), to an annex they constructed at their home. EM had previously lived in the garage at their home, but this was unsuitable as EM required round the clock care from three carers, who needed their own accommodation. EM’s parents could not afford this new arrangement without housing benefit. EM’s dad entered into a purported tenancy agreement with her for an indefinite term (hmm) at (what all agreed) was a reasonable rent. The question for the Upper Tribunal was whether this created a liability to which HB attached.

In the first decision ([2011] UKUT 144 AAC), Judge Mark held that it did not [we discussed that decision here NL]. It was a void agreement because EM’s dad clearly knew that she lacked capacity (citing Hart v O’Connor [1985] AC 1000).

However, in somewhat dramatic fashion, Judge Mark returned to the matter ([2012] UKUT 12 (AAC) – not on BAILI yet but we have seen the judgment thanks to a friend of the blog) in accordance with Rule 45(1)(a), Tribunal Procedure (Upper Tribunal) Rules 2008, which enabled him to re-open the decision if he had overlooked a legislative provision or binding authority which could have a material effect on the decision. At this hearing EM brought an entirely new ground to the table, so to speak: contracts for necessaries, either under section 7, Mental Capacity Act 1995 or the common law position as exemplified by In Re Rhodes (1890) 44 Ch D 94. And he also had the redoubtable Nathalie Lieven QC and David Blundell acting for EM (presumably pro bono, although this isn’t stated).

Although Judge Mark was in some doubt as to whether section 7 covered this matter (is the provision of accommodation “goods and services”?), he held rightly that the common law would cover this matter if the provision of this accommodation was a necessary. Wychavon argued that it wasn’t necessary because EM had previously lived in the garage and could do so again; but, as Judge Mark pointed out, that flew in the face of the evidence which had been accepted by the judge in the first tier tribunal and was in some respects uncontested.

As Judge Mark points out, HB is not only payable where a person is liable for rent but in respect of payments for the dwelling which is occupied as a home, and EM was so liable. Wychavon submitted that such matters were best dealt with through the Court of Protection. Judge Mark agreed but was also right in saying that such applications take many months and, pending that application, a person without capacity should not be left without necessaries.

There is a parting salvo because it was clear that the issue here was not between EM and Wychavon but between Wychavon and Worcestershire CC, which had effectively passed the matter on: “It is very unfortunate if that is the case, and if this series of appeals at public expense has been made necessary because of arguments between different authorities as to from whose budget essential provision should be made”.

Misunderstanding and underuse of advocacy for the first year of the DoLS

2012-02-01T06:37:00.000-08:00

Data on the use of s39D IMCA's in the first year shows poor awareness and underuse.

As I've discussed several times before on this blog, the snappily titled s39D IMCA's are an absolutely vital part of the deprivation of liberty safeguards (DoLS). This is because they are, theoretically, the only person involved in the process who a) understand the DoLS; b) doesn't have a vested interest in the outcome. Their role is the support the detainee (P) and their unpaid representative (R). However, in July 2010 the Mental Health Alliance reported that:

...IMCAs are far more likely than family representatives to recognise when legal processes are not being properly followed, and to challenge them, but IMCA providers reported that requests for 39D IMCAs were very rare, and it was suggested that they were being appointed in less than five per cent of cases where relatives or friends were acting as representatives, the usual practice simply being to inform the representative in their appointment letter that the service was available if they requested it. Cost (which the Government’s impact assessment did not specifically provide for) may well be a factor, and it was suggested also that the volume of paperwork and notifications accompanying an authorisation was a disincentive for supervisory bodies to undertake any additional tasks which were not an absolute requirement. However, the implication is that the requirements of Section 39D are generally being disregarded and that the vast majority of family representatives are receiving no support in grappling with an opaque and impenetrable system.

I tried to get some hard data to back up the assertion that s39D IMCA's were only being appointed in 5% of cases where people had an unpaid representative. For various reasons I wasn't completely happy with the data I collected directly from local authorities; one reason was that several responses suggested some local authorities hadn't even heard of s39D IMCA's. This despite the fact it's their duty to refer P or R to one if they think P and R need support understanding or exercising their rights. In some ways it's not that surprising that supervisory bodies didn't know about the s39D IMCA role... because they're not mentioned in the DoLS code of practice!!! [Edit: 02/02/2012 Roger just pointed out that the role is mentioned in paragraphs 7.37-7.41 of the code, but it doesn't mention the relevant bit of the statute, so the name '39D' wouldn't be clear]. So they'd only know about them if they'd been specifically told, or looked at the schedules.

In the last IMCA report, the DH produced the following chart:

This chart plots the number of s39D referrals against the number of people subject to a standard authorisation at any given time. Before you draw the erroneous conclusion that by summer 2010 there were as many IMCA instructions as there were authorisations, check the scales on both sides of the graph... I assume (although it doesn't say this) that the scale of the left is for advocacy referrals and the scale on the right for authorisations. The DH themselves do note that:

'The actual percentage will be lower because more that one 39D inst ruction can be made during a standard authorisation, and some of these 612 instructions will be in relation to authorisations granted in the previous year.' (p25)

There is roughly a tenfold difference between the scales for advocacy referrals and authorisations:

'...in the fourth year there were only six hundred and twelve 39D IMCA instructions compared to 4951 standard authorisations being gr anted. This means that at most 12% of people subject to these new authorisations benefited from the support of a 39D IMCA.' (p25)

I wanted to explore the variation in use of the IMCA service between different local authorities. In February 2011 I wrote to the Department of Health (DH) asking them to provide me with detailed data on the number of people detained under the deprivation of liberty safeguards (DOLS) and referred to advocacy services under s39A, s39C and s39D Mental Capacity Act (MCA). I won't bore you with ins and outs of why this request took a year to come through, but the DH kindly shared the data with me yesterday. It's quite interesting on several grounds, not least of which the "health warning" they supplied with it:

The data by category for 2009/10 were not published due to feedback from advocates, care homes and local authorities, which showed that there was considerable confusion over the understanding and recording of the different categories of DoLS in the first year. The decision was made at the time that the numbers inputted under the three categories were unreliable and unusable. However, this review has highlighted that, despite its erroneous nature, there are no legal grounds for withholding the information.

I think that's a research finding in itself: such was the level of confusion on the ground about what different kinds of IMCA's for DoLS, the data collected on this was unuseable. Out of interest, I have plotted the following charts anyway showing the number of s39D IMCA's against the number of authorisations overall from the DH's data, but please bear in mind their health warning:

The impact assessment predicted that the number of s39D referrals overall would be roughly half the total number of authorisations. Look at the difference in the scales on the two axes: a local authority that had made just under 140 authorisations in the first year reported making only one s39D referral. A local authority that reported making 60 authorisations made no referrals at all. Now, it's possible that they were just confused in their data (although it would be pretty alarming that a local authority with that level of DoLS activity didn't know what a s39D IMCA was) and muddled up the different kinds of IMCA. But even so, the local authority making just under 140 authorisations had made 15 s39A referrals, and 5 39C referrals, so that's 21 IMCA's for 137 authorisations: 15% overall. That's still far lower than projections.

So, to recap, both my graph and the DH graph suffer from data quality issues because they were based on problematic data. The DH graph, as they acknowledge, underestimates the problem because they base it on the number of people detained rather than the number of authorisations. Conversely, my graph is based on the number of authorisations, rather than the quarterly 'snapshot' of the number of people detained, and because some people may be subject to more than one authorisation, but might still have benefitted from a s39D referral, my graph will overestimate the problem. On the basis of the official data alone, it's impossible to extract the figure we really want: how many people who were detained under the DoLS did, and did not, benefit from a s39D IMCA's support when they were legally entitled to one. However, looking at these data, we can reasonably conclude three things:

During the first year of operation of the DoLS there was 'considerable confusion over the understanding and recording of the different categories of DoLS' among care providers, supervisory bodies and IMCA teams themselves.
During the first year of the DoLS, the number of reported s39D IMCA referrals varied enormously by local authority area, suggesting both that understandings of the role varied enormously, but also that access to support from a s39D IMCA was something of a postcode lottery.
During the first year of the DoLS, far far fewer people subject to a standard authorisation beneffited from the support of a s39D IMCA; it is quite possible, therefore that they were not supported to exercise their rights of review and appeal where they should have been. Consequently, it seems entirely possible that there are hidden 'Neary' cases within these figures: situations where either P or P's representative disputes the detention, but they are not being supported to appeal. Therefore, we should be concerned that people's Article 5(4) rights of appeal were not being met in the first year of the DoLS.

Fortunately, the DH's chart shows that use of s39D IMCA's is increasing. It will be interesting to see whether there is a 'spike' in s39D IMCA referrals for summer 2011, as we saw in DoLS appeals, following the publicity around the Neary ruling.

Human Rights - What's not to love?

2012-01-26T03:49:00.000-08:00

Human rights are not perfect, but we should defend them against this onslaught.

Political scientist Wendy Brown, quoting Gayatri Spivak, calls human rights ‘that which we cannot not want’. Spivak’s formulation is reminiscent of the late Lord Bingham’s rhetorical question: ‘Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary?’ Or Liberty’s simpler formulation: What’s not to love?

Brown goes on to say that Spivak calls human rights ‘that which we cannot not want’ in the context of knowing their limitations, in the context of knowing what ‘hidden cruelties’ and ‘unemancipatory relations of power’ are concealed within liberalism’s ‘sunny formulations of freedom and equality’. She gives a carefully articulated account of the paradoxes and limitations of human rights law as a tool of emancipation for subjugated groups. Ben Golder also explores the ‘limits and possibilities’ of human rights through the writings of Foucault and others (see, for example, this great lecture or this paper; and I just found another great free paper on this topic by Souter). I hope I’m not butchering their carefully formulated arguments when I summarise them thus: the problem with human rights is that they attenuate, soften, and tinker round the edges of the problems of inequality and oppression in our society, but they do not rupture the status quo to affect the structural background to these concerns.

In short, human rights are not an instrument of radical emancipation, they just (potentially) make things a bit less bad. And they will tend to do so in a way that disproportionately benefits more powerful groups, who have increased access to justice to exercise their rights. Nothing infuriates me more than human rights proponents who fail to see the connection between LASPO and human rights. And human rights, like all legal tools, will tend to be interpreted in ways confluent with hegemonic discourses and norms. This is problematic because discourses are part of the machinery of oppression (think of Mostyn J's comments about a 17 year old with learning disabilities in Re RK, ‘I am not sure that the notion of autonomy is meaningful for a person in RK’s position’). The rights (Convention or otherwise) of different groups can come into conflict, and often – but not always – the powerful will be in a better position to argue their case, to reveal the ways in which the state itself is invested in upholding their rights over those of society’s outsiders (for example, the rights to property and profit of care providers in conflict with the rights of Mrs YL). And of course, important claims that could hold states to account can be more easily bought off if they are brought by the poor, stemming the need to take remedial action for others in similar situations.

Furthermore, human rights can be double edged. Positive obligations to protect against loss of life (Article 2 ECHR) or inhuman and degrading treatment (Article 3 ECHR) can come into tension with rights to privacy, liberty and autonomy (think of how the case of Savage v South Essex Partnership NHS Trust (2008) might make hospitals more wary of granting leave to detained patients; or how the duty to safeguard children from abuse will impact upon the privacy of families in general). These tensions are not easily resolved; a further point made by Brown is that legal scholars and campaigners tend to 'specialise' in the rights of a particular group, and consequently fail to address the ways in which their rights may be pitted against those of others. A good example from my research is how the rights of carers and families can sometimes come into conflict with the rights of disabled people - a point that few feminist or disability rights scholars have addressed (bar the honourable exception of Tom Shakespeare, and see also this great paper by Jane Campbell - HT to Neil Crowther for that).

Even in purely legal terms, human rights instruments can be somewhat unsatisfactory because of their unpredictability and lack of specificity, making them dangerously arbitrary and hard to apply by judges, and also for those in the public sector meant to embed human rights values into their work (or perhaps that’s just Article 5?). Certainly I increasingly think that whilst human rights were vital to drawing attention to issues of liberty of the person in social care, being hitched to the meaning of Article 5 may yet be the downfall of the deprivation of liberty safeguards. For those wanting to further the cause of marginalised groups, human rights can be fickle friends. But, in times of need, when you have no other resources or weapons at your disposal, a fickle friend is better than none at all.

And that is why, despite having reservations about the potential of human rights law to remedy societal ills, and despite being somewhat wary of forms of human rights evangelism that doesn’t take into account issues around power, interpretation and access to justice, I have been horrified and a little heartbroken at the persistent and increasingly pervasive reputational attack on human rights in public discourse, which seems to have reached fever pitch this week. For the first time I have started to believe it might be possible that the UK could withdraw from the European Convention on Human Rights. That it might be possible that the repeal of the Human Rights Act 1998 and replacement with a Bill of Rights isn’t just a cosmetic alteration (I love Adam Wagner’s ‘new Ford Fiesta’ analogy), but actually leading to a weakening of domestic human rights machinery.

Because what Cameron and his colleagues are attempting to do is not to remedy the problems with human rights instruments outlined by critical legal scholars, is not even to attempt to remedy the problems of unpredictability and uncertainty that may plague the legal profession and public sector. It is to dismantle the architecture that makes human rights have some concrete value in the UK rather than being a cosmetic, vague, whimsical and unenforceable set of statements; 'brochure values' if you like. The Conservative party have been careful not to position themselves against human rights: ‘a Conservative government will always speak up for freedom and human rights’ (2010 manifesto, p109). To position themselves against human rights would be to position themselves against the grain of the national and global political imagination – to admit to being ok with a bit of torture, a bit of arbitrary detention, a bit of snooping in your private affairs. If they did straightforwardly position themselves against human rights it would be much easier, in many ways, for dedicated human rights campaigners to puncture their rhetoric. No, what Cameron and his colleagues are saying is much more sinister: I want to retain the rhetoric, the legitimising veil, the glamour of human rights – but I want to dismantle the only means that private citizens have to call me to account on what I say.

As that architect of liberal thought, Jeremy Bentham once said - unenforceable human rights are ‘nonsense upon stilts’. They are a circus act: they can intrigue, inspire, command attention – these things have value, but they are neither sword nor shield. Although many would prefer the broader and more generous principles outlined in the Universal Declaration of Human Rights to the drier and more traditional liberal values of the European Convention on Human Rights, it is the Convention that is truly innovative because of its mechanism. It is a mechanism that allows individuals to hold governments to account, to appeal to a court that is divested of the interests of the state, a non-parochial court whose judges may bring to bear a broader range of perspectives and political experiences on their rulings. Sometimes, yes, this can be problematic - where there are misunderstandings of the social and legal context of a particular concern. But equally it seems possible that a fresh set of eyes may see possibilities for solutions or even dangers that domestic courts did not apprehend. Far from the judges of Russia, Ukraine and Turkey ‘polluting’ the clean liberal waters of the ECtHR, they may bring much needed awareness of the ways in which the rule of law and the values we take for granted can slide into oblivion. As we march towards a global depression paralleling, if not exceeding, that which preceded the Second World War; as we see governments (Hungary?) reviling democratic principles and politicians (Gingrich?) the rule of law, we individual citizens should be very cautious of assuming we can hold our governments to account through elections alone. Do you really think a vote once every five years, between three political parties whose similarities converge on indistinguishability half the time, can exercise any real power over the nuanced and complex human rights issues arising in our courts?

The foot-stamping articulations of the ‘margin of appreciation’ in recent times strike me as little more than sour grapes and nationalism. There is much of value in the idea of subsidiarity, and I would welcome reasoned discussion of what issues are and are not appropriate fodder for the ECtHR. But as far as I can see no prominent politician or commentator banging the ‘margin of appreciation’ drum recently has put forward any sensible legal or political principles that make it clear where subsidiarity lies, which issues should be dealt with at a national level. Why is prisoners voting a ‘subsidiarity’ issue when others are not? It really is not clear to me at all, and the danger is that unless it is well defined the ‘margin of appreciation’ becomes yet another arbitrary legal device that increases both the capricious power of governments and the courts themselves.

Cameron’s insidious dismissal of the ECtHR’s work as ‘small claims’ is as pompous as it unperceiving. Whether a claim is ‘small’ or not depends upon one’s perspective, and one has to wonder what Cameron’s perspective on this is when – as Francesca Klug reminds us – the claims brought against the UK in the ECtHR included:

When journalists were forced to reveal sources; when police could stop and search any of us without suspicion in a designated area; when innocent people's DNA was retained indefinitely; when a 15-year-old boy was flogged by police as corporal punishment; when social services failed to act on complaints of child abuse; when foreign terror suspects were detained indefinitely without charge or trial

And the analogy itself is revealing of his perspective: as a Guardian editorial points out today, the claims heard by the small claims court may be ‘small’ in monetary terms, particularly to our millionaire prime minister, but they are vital to its users. Even the seeming-trivial can raise serious human rights points. I believe that as a general rule, the less powerful a person is, the fewer non-legal mechanisms available at their disposal to challenge incursions into their autonomy, privacy and dignity, the more important human rights instruments will become. So what seems ‘small’ to the Prime Minister, the comfortably off, the able bodied and those at liberty may well not seem ‘small’ to the vulnerable, the powerless and the confined. This point was eloquently expressed by Lady Dorian in a Scottish case – Lyons v State Hospital, a case concerning the hospital’s decision to ban visitors from bringing food to patients and the patients from getting takeaway in case they got fat:

This case does not simply deal with a trivial aspect of everyday life. For inmates of the state hospital, the freedom to receive food parcels from visitors and to make purchases from an external source are some of the few areas in which they may exercise some sort of personal autonomy or choice. I have reached the conclusion that a person's right to choose what they eat and drink is a matter in respect of which article 8 is engaged. If that choice is interfered with, it must be justified. [26]

In fact, Lady Dorian found the hospital’s decision was unlawful on procedural public law grounds and the Article 8 point was never developed. But the point is this, for all those ‘small things’ that most people take for granted – the right to choose what we eat, who we associate with, who comes into our home, who touches us and how, to wear our hair in accordance with our cultural traditions, the privacy of telephone calls or correspondence, use of mobile phones the internet – for some people these choices and privacies are very vulnerable. Eating healthy food may seem like a laudable aim, but I have no doubt that Cameron and his party, the right wing press, and indeed most people would be in uproar if the state imposed restrictions on what we could eat (look at their response to Jamie Oliver's healthy school dinners!). These ‘small’ rights are invisible precisely because for the most part we take them for granted and we have a variety of means to defend them, so we never think of turning to law. For others, there may be no other tools at their disposal to address these incursions into the most private and intimate of matters.

I used to be a human rights sceptic, I used to think human rights were a set of whimsical aspirational statements beloved of interns in glamorous NGO’s being paid in Pret-a-Manger sandwiches. I thought they were a lazy way of saying “I just want things to be nice” without getting your hands dirty with the detail. Despite the name of this blog, I am not a human rights evangelist and I am all too aware of their limitations. But however fickle and faulted they are as a political weapon, they are one of the best means we have of expressing our concerns to the political and legal establishment, of holding governments to account, of speaking truth to power. Even in those socially and politically important claims that have not succeeded – take McDonald v Kensington and Chelsea, for example - all is not lost. For every lost human rights claim, the Human Rights Act and the Convention have provided a language and a mechanism to articulate matters of great social and political importance, to highlight and test the limitations of justice in our society as things stand. Surely to force the Daily Mail's Richard Littlejohn to side with a human rights claimant over squeamish judges is a victory of sorts?

Without human rights, many pressing matters would be silent before the law. And the ‘softening’ effect that Brown speaks of is not to be sniffed at by comfortable scholars in the academe, unless they would prefer rights to be divested of what limited potency they should have whilst acting as a fig leaf for governments. Human rights should not be sniffed at by anyone with human vulnerabilities to illness or old age. Nor civil libertarians, nor those with family: without human rights Steven Neary, HL and their colleagues would still be subject to arbitrary detentions, in institutions far from home and family (a point rarely made in the media coverage of these cases). Nor should they be sniffed at by celebrities or even the media themselves who have had need to recourse to them in their time. Human rights can be a lifeline; a slippery, frayed and perhaps insecurely tethered lifeline for some, but still worth grabbing hold of nonetheless. Why should we all stand shoulder to shoulder in defence of human rights, wherever we stand on the political spectrum? Because, in the words of Foucault, a scholar hardly known for his stateist or establishment tendencies:

We are just private individuals here, with no other grounds for speaking, or for speaking together, than a certain shared difficulty in enduring what is taking place... Who appointed us, then? No one. And that is precisely what constitutes our right... There exists an international citizenship that has its rights and its duties, and that obliges one to speak out against every abuse of power, whoever its author, whoever its victims. After all, we are all members of the community of the governed, and thereby obliged to show mutual solidarity.

Mr Stanev's fine achievement

2012-01-20T10:26:00.000-08:00

The European Court of Human Rights has delivered a landmark ruling for issues around mental capacity and detention in social care.

Ever since I watched the Webcast of the Grand Chamber hearing of Stanev v Bulgaria in February last year, I've checked the ECtHR webpages on a weekly basis for the judgment in case I missed it. The European Court of Human Rights issued its judgment on Monday of this week. The case goes to the very heart of many central themes in human rights in social care: poverty, isolation, instutionalisation, incapacity and access to justice. The story of the claimant, Rusi Stanev, could hardly fail to move. He was placed by his guardian in a social care institution with no explanation, having never met them and them never having sought his views. He has family, but there is little sense that they were interested in his plight in this ruling. The institution was pronounced by the Council of Europe Committee for the Prevention of Torture as creating 'a situation which could be said to amount to inhuman and degrading treatment', you can see photos of similar institutions in Eastern Europe here. Despite the institution's isolation in the Rila mountains, Rusi Stanev made repeated attempts to find work in a village several miles away, to escape, to create a life beyond the oppressive and stultifying world offered within the institution's walls. The care home's director kept hold of his identity papers, required for travel, and so the police would apprehend him, call the care home, and they would bring him back.

Mr Stanev tried repeatedly to appeal against the decision of his guardian to place him there, but being declared 'incapacitated' he could not make a direct appeal to the courts. Instead he appealed to his guardian, to the Mayor, to the Public Prosecutor, to make an application to court on his behalf for the restoration of his legal capacity, and consequently his right to choose where he lived. They declined to do so. Mr Stanev's situation is reminiscent in certain respects of that of HL in the Bournewood case, where there was no obvious mechanism to bring his situation to the attention of the courts; except for one crucial difference. HL had active and concerned carers who persisted in seeking justice for him; Mr Stanev had nobody. And as a man denied access to the courts because of his status as incapacitated, in the eyes of the law he was nobody.

Even though it touches upon some of the most fundamental human rights issues, for some of the most vulnerable and marginalised groups, very few cases about incapacity ever get to the ECtHR, especially from social care. This cannot be because human rights violations in social care areunusual or dealt with brilliantly by domestic laws; as Bartlett,Lewis and Therold write ‘The lack of cases may have more to do withaccess to justice... than providing us with an identification of numbers ofpeople affected’. In Sir Nicholas Bratza’s foreword to their book he wrote thatin the wake of Winterwerpv the Netherlands one might have expected the judgment ‘would lead to a flowering of theCourt’s case-law on the Convention rights of persons with mental disabilities,the contrary proved to be the case: the jurisprudence of the Court in thesucceeding twenty years is notable for the almost complete dearth of judicialdecisions in this vitally important area.’ Sir Nicholas Bratza, a UK lawyer and the current president of the ECtHR,in fact sat in the Grand Chamber in this present case.

That Mr Stanev was able to surmount the obstacles to justice posed by poverty, isolation, institutionalisation and being a legal nobody, surely speaks volumes about a system that failed to recognise his remarkable capacity and potential as a human being. He was assisted in his case by his lawyer, Aneta Genova, and Lycette Nelson and Victoria Lee from the Mental Disability Advocacy Centre also helped to present his case before the Grand Chamber. The ECtHR also heard an intervention from Interights, a London based NGO whose work focuses on strategic litigation and dissemination of legal information on human rights. And the Bulgarian Helsinki Committee were also involved in helping Rusi bring his case to court.

The court found that:

Mr Stanev had been deprived of his liberty within the meaning of Article 5 because he had been subject to supervision and control, had not been free to leave and he objected to his confinement;
His detention was incompatible with Article 5(1) because it was grounded not in his alleged mental disorder (which there had been no real attempt to assess or treat) but in a lack of available alternatives;
His detention had been incompatible with Article 5(4) because there was no way for Mr Stanev to bring his case before a judge because it had relied upon the exercise of discretion of others. This was because he had no standing before the court, due to his status as incapacitated;
There was a violation of Article 5(5) as he had no means to seek compensation for his unlawful detention (he was awarded 15,000 Euros by the ECtHR in compensation);
There was a violation of Article 3 as a result of the conditions in the care home;
There was a violation of Article 6, because - due to his status as incapacitated - he had no means to access justice for arguable and fundamental human rights issues to be considered. The restrictions on his legal capacity were disproportionate and lacked safeguards;
By thirteen votes to four, the court decided there were no further issues to be decided under Article 8, although the dissenting judgments suggest the court would be willing to entertain Article 8 arguments in the context of oppressive and invasive institutional regimes.

There is so much meat on this judgment, that I have been wondering what to say about it all week. In fact, I've decided to just bask in Mr Stanev's achievement in directing much needed legal attention towards human rights issues that will potentially have very wide reaching effects throughout the Council of Europe. Already there have been a few commentaries, including this one by MDAC and this one by Nell Munro at Nottingham University (on their new and exciting mental health and mental capacity law blog). There is much more to be said for what the judgment will mean domestically. It has a bearing on several issues around the MCA, the DoLS, the interpretation of Article 5 and I think also on how we manage litigation capacity. In its focus on Mr Stanev's objections to his placement, and the lack of review mechanisms for decisions taken by guardians, it is a gift to lawyers seeking to appeal the ruling in C v Blackburn with Darwen. It strikes me that it may also have a bearing on the appeals of P & Q, and has a lot of resonance with the situation of RK in Re RK. It's relationship to Cheshire is more complex, but I'll think about that another time. But for now, it's probably worth just acquainting yourself with this judgment if you work in the field of mental capacity; you'll be hearing a lot more about it in the years to come.

Costing the deprivation of liberty safeguards

2012-01-14T05:38:00.000-08:00

Even though the number of applications are far lower than anticipated, even though the proportion of those appealing is far lower than anticipated, the cost of the DoLS is ballooning far beyond the predictions of the impact assessment.

One of the criticisms that are frequently levied against the deprivation of liberty safeguards (DoLS) is that they are enormously expensive. However, there appears to be no official data on how much they are actually costing in contrast with predictions, and so it is hard to know whether this criticism is fair. Certainly a variety of significant rulings on the scope of Article 5 (and hence the DoLS) have mentioned the wider resource implications of finding that a particular situation amounts to a deprivation of liberty (e.g. Re RK [2011] [8], [44], [45]; Cheshire West and Chester Council v P [2011] (on costs) [8]; P & Q v Surrey County Council [2011] [4] –[5]). And many of these hearings on deprivation of liberty are currently being heard in the High Court; a function which they have been allocated no additional resources for. It seems likely that this additional workload must have knock-on consequences for the ordinary family law work of the court, and I expect the judiciary must be feeling the strain. Because of the dearth of official data on the cost of the DoLS, I have tried to put together some costings on the legal process. And what I found is not pretty at all. The headline is this: even though the number of applications are far lower than anticipated, even though the proportion of those appealing is far lower than anticipated, the cost of the DoLS is ballooning far beyond the predictions of the impact assessment. Furthermore, whereas the impact assessment anticipated that the number of applications, authorisations and appeals would decrease after the first year, all the evidence is that applications and appeals - and their associated costs - will continue to rise. The overall cost to the public purse is not being monitored centrally, but if these estimates are correct then it could be very significant indeed.

The cost of the assessment process at local level

Shah and colleagues have shown that the cost of the assessment process under the deprivation of liberty safeguards far exceeds the predictions of the impact assessment. They found that whereas the impact assessment catered for 20,000 assessments for DoLS (in England, another 1000 in Wales) at a cost of £600 per assessment, it was in fact costing around £1277 per assessment. However, the authors concluded that the budget allocated for assessments is likely to be adequate because the number of applications has been so low. But since they wrote, the number of applications - and hence assessments has been rising. If Shah’s estimates are applied to the more recent DoLS annual statistics, and extrapolated out from the data for 2011-12 so far, we can see that the cost of assessments now far exceeds predictions. Contrary to a projected year-on-year decrease in the use of the DoLS, the number of applications – and associated costs - may continue to rise.

If this is how much more applications and assessments are costing - what about the cost of the legal process?

The impact assessment predicted that 25% of all DoLS applications would result in authorisation (5250 for the first year); that 25% of authorised cases (approx 1313) would result in a request for legal advice funded by the Legal Services Commission (LSC), and that 2.5% of all DoLS authorisation would result in an appeal (approx 131 per annum). The number of applications, authorisations and appeals was predicted to fall year on year, and reach a steady-state in 2014/15. They estimated the typical cost of a legal aid certificate for advice to be £141, and the typical legal costs of a DoLS appeal – including legal aid and court costs – to be £9k. It is unclear from these estimates whether they also factored in the legal costs to supervisory bodies of appeals. The costs of legal advice and appeals were consequently predicted to be:

2009/10 - £1.37m
2010/11 - £1.18m
2011/12 - £1m
2012/13 - £0.82m
2014/15 - £0.64m
2015/16 - £0.46m

What are appeals actually costing under the DoLS?

I asked the LSC for the costs of closed legal aid certificates for advice on s21A MCA; the average cost was £388.54 (2.75x greater than predicted). The average cost of a legal aid certificate for legal representation was £10,993.30. The Ministry of Justice says it does not collect data on court costs for DOLS, but already the cost of representation for a single litigant is greater than the total £9k predicted by the impact assessment for the total legal costs of an appeal. It would normally be anticipated that at least two legal aid certificates would be issued for a s21A appeal: one for P and one for P’s representative (bringing the total legal aid cost to £21,987). I have also obtained estimates of cost breakdowns from solicitors; however the cost estimates of the two solicitors I asked were much higher than the legal aid certificates, ranging between around £12-23k per client. I assume this may refer to privately funded litigants, where solicitors’ fees may be higher – so I have not based the following calculations on data from solicitors, only from local authorities.

I also asked local authorities to give me estimates of how much appeals were costing them. I have heard back from only a few, but here is a table of the costs they cited:

Some local authorities estimated a range for individual costs, so I put an entry into this table for a case at the upper and lower range for that local authority (e.g. 3a, and 3b are the upper and lower range estimated by local authority 3). Others cited the costs of particular cases, some still ongoing, so those estimates have a line each. Some costs were only provided by some local authorities - very few quantified the costs to their in-house legal staff and DoLS teams. I took an average for the costs of experts, counsel, legal staff, DoLS staff, and court fees, and summed them to produce an average estimated cost of a DoLS hearing for a local authority: £23.6k (range: £4.8k-£59k).

To produce an estimate of the overall cost to the public purse of a single hearing in the Court of Protection about a deprivation of liberty, I assumed that it would involve two legally aided litigants (P, and P's representative) and a supervisory body. Often a managing authority would be listed as a defendant as well, but I have not considered these costs as they will not usually be met from the public purse (not directly, at least). One local authority commented that there were also cases where a health authority might be listed as well, if they were funding the care home fees - I have not included such eventualities in my estimates. Neither have I been able to consider the costs to the court services of a hearing, nor the costs to the Office of the Official Solicitor for their time, as no such data is collected. In short, the estimates I am basing the following projections on are likely to be very conservative. Based on these assumptions, a conservative estimate of the typical cost of a DoLS hearing to the public purse would be £45.6k, not £9k, as anticipated by the impact assessment.

Factoring in the actual number of appeals

Fortunately for the public purse, although not for detainees, the DoLS ‘have barely begun to function’. The impact assessment predicted 2.5% of all authorisation would result in an appeal under s21A. In the first year, there were only 19 appeals under s21A (0.56% of all authorisations); in the second year there were 40 (1.52% of all authorisations). However, following the case London Borough of Hillingdon v Neary [2011] there is a visible ‘spike’ in appeals under s21A as well as court hearings relating to deprivation of liberty under other parts of the MCA:

If we factor in the estimated average cost of a s21A MCA appeal, with the number of appeals, and compare it with the impact assessment predictions, it may look something like this:

[* Estimates for this year extrapolated out from data on appeals to October 2011]

But of course, what the impact assessment did not take into account was that a large number of cases in the Court of Protection relating to deprivation of liberty (in fact, the majority) are not brought under s21A MCA. This is because they are either cases where a public authority has had to seek authorisation directly from the court, and annual reviews, because the DoLS did not take into account the full range of contexts where a person might be deprived of liberty (a rather costly oversight, it would now seem). Or they are cases where, for one reason or another either P or P's representative has been unable to trigger a s21A MCA appeal, but there is an ongoing dispute. And so, following Neary, supervisory bodies are acting on advice to refer disputes involving deprivation of liberty to the Court of Protection themselves where the appeal process has failed. They may well do so under s15 and/or s16 MCA. So, taking into account these cases as well, the costs of all cases in the Court of Protection concerning deprivation of liberty may look more like this:

I reiterate: This is not taking into account the costs of managing authorities, the courts, the Official Solicitor; nor cases where a second public authority is a defendant, nor any damages payable for unlawful detention. And, as the number of appeals looks as if it is growing, the costs will do so also.

The rising costs of DoLS in the future?

If appeals continue to rise, and the costs of a Court of Protection case relating to deprivation of liberty do not decrease, there are several possible outcomes:

The cost to the public purse – to local authorities (and PCTs, until they are abolished), to the courts, to the Official Solicitor, the Ministry of Justice -may become intolerable.
In response, supervisory bodies may seek ways to avoid authorisations and disputes coming to court; which may be incompatible with the Article 5 rights of detainees, and the Article 8 rights of detainees and their families.
Likewise, the pressure on the Official Solicitor may require other litigation friends to become available; one option is to use paid representatives. Their pay will also have to reflect the true amount of time of case management for a litigation friend; however, their time is likely to be less expensive than the legally qualified case managers that work for the Official Solicitor.
Although the interpretation of deprivation of liberty should not reflect the burden these cases place on the legal system, we must consider that there is a danger that this may still influence judicial reasoning. Certainly, many cases make reference to this issue, indicating at least that public authorities seem to view it as pertinent to the scope of Article 5 when presenting their case to the court.

It is of course possible that these costs are an overestimate; although I feel they are more likely to be overly conservative. It is also possible that costs will decrease in time, as case law becomes clearer and cases are dealt with in lower courts. However, my feeling is that the technical issues in the DoLS have not yet all been resolved. And I think, talking to DoLS teams, that cases like Neary may only be the tip of the iceberg in terms of disputes; we should expect more. Futhermore, although the ruling in Cheshire in no small part attempted to simplify decisions around whether a deprivation of liberty is actually occurring, I think it may simply have shifted the debates from the 'Sorites paradox' (Clements, 2011) of where restrictions on liberty shade into deprivation of liberty, to the question of what is 'the appropriate comparator' for any given individual, and just how real does an alternative residence need to be to engage Article 5? Because so many safeguards and benefits attach to the scope of Article 5, I don't think we'll see litigants letting this issue go so easily. Such is the complexity of social care and people's lives, that determining issues on the basis of Cheshire is unlikely to be as simple as many lawyers seem to expect. In short, whilst I think it is possible that Cheshire will offer a means for supervisory bodies to avoid authorising DoLS applications, hence diminishing protections in the community, I don't think it will resolve the conundrum facing the legal system of how to deal with the ballooning costs of appeals.

This cannot be sustainable in the long term. In part the costs derive from having to seek authorisation and review for cases outside the scope of the DoLS; amending the framework to allow for authorisations in settings other than care homes and hospitals would certainly reduce the number of review cases. In part costs may be so high because the DoLS themselves are very complex (‘labyrinthine’, ‘byzantine’, ‘bureaucratic’), necessitating more complex legal arguments. To remedy this issue would require a total revision of the framework; and of course this would have significant attendant costs. Some disputes that could have been resolved earlier may be reaching court because of poor understanding and application of the DoLS (certainly, one hears anecdotally of many 'interesting' practices by DoLS teams); a revision of the code of practice to include important case law could perhaps stem some of these issues. Another idea that I have been toying with would be to switch to a statutory definition of 'deprivation of liberty', which could be achieved by means of an amendment to the DoLS. Ideally this definition would be subject to public consultation so we could hear reasoned and evidenced arguments about who needs the protection of the DoLS, rather than a mish-mash approach based on case law that is highly fact specific and problematic when applied to cases outside those facts. Such a statutory definition would reduce the amount of time taken by public authorities and courts deliberating and debating the scope of Article 5, and potentially save on legal argument (and hence, costs). However it is possible that greater certainly might increase the use of DoLS if currently managing authorities and supervisory bodies are exploiting this uncertainty and under-applying the framework. Clearly greater legal certainty and consistency of approach would be a good thing, although if it ends up costing more it might be hard to persuade governments to consider this. And then, of course, are the perennial debates about whether DoLS appeals should be more like tribunals, or even held by tribunals, although my view is that nobody has yet conducted a proper analysis of why the cases are taking so much time, and what 'efficiencies' of approach could be found whilst still ensuring people's rights are upheld.

Overall, I think if the argument that DoLS aren't 'fit for purpose' doesn't persuade the authorities that it's time to go back to the drawing board, then maybe the growing costs should persuade parliament that it would be prudent to engage in thorough post-legislative scrutiny. However, my concern is that high though these costs are, significant reforms would almost certainly cost more. Instead what I suspect will happen is that the DoLS will continue to put a significant strain on the court system and public authorities, who will come under pressure to avoid using them wherever possible. I think it is possible that only a repeat of Bournewood, embarrassing litigation in Europe where the DoLS have failed to protect people's rights, will prompt serious revisions to the framework. With rulings like C v Blackburn with Darwen, we creep closer every day.

And meanwhile in the Czech Republic...

2012-01-13T04:44:00.000-08:00

...The Czech Ombudsman has issued the opinion that the placement of a person who is deprived of their legal capacity in a care home must be authorised by a court. This ruling awaits review by the Czech Constitutional Court, but will potentially affect over 30,000 people subject to guardianship laws in the Czech Republic, and rather puts into perspective the squealing of courts in England and Wales about having to review a few hundred deprivation of liberty authorisations. According to the Mental Disability Advocacy Centre (MDAC) the Ombudsman issued this opinion on the basis that placement in a social care institution by a guardian, without any means to challenge it, was a violation of human rights. I would love to know more about his legal reasoning, if anyone in the Czech Republic is reading this...

MDAC have previously reported that a ruling by the Russian Constitutional Court found that:

...placement in a social care institution against a person’s will constitutes deprivation of liberty and a restriction on the right to freedom of movement. In a new development of jurisprudence, the court said that a judicial review needs to be carried out before deciding to transfer someone to an institution, and that the review must be attended by the same fair trial guarantees as involuntary hospitalisation. The interpretation of the Constitutional Court has direct application and will require a court order in every case of institutional placement of a person deprived of legal capacity. It requires the legislature to develop procedures for such cases.

Domestically I think we can be rather over-smug about protection of human rights and our mental capacity laws. However both the Czech Republic and Russia seem to be more active than our domestic courts in requiring judicial supervision of placement in institutional care of people said to lack capacity. It is worth bearing in mind that if a person who is said to lack capacity is placed in a social care facility in England or Wales, unless they are subject to the DoLS there are very few sources of scrutiny or accessible mechanisms available for them to have their objections considered. These international rulings appear to apply to adults who are said to lack capacity, whether or not they object to their placement. Meanwhile in the UK, following rulings like C v Blackburn with Darwen, even objections may not trigger any external review of placement in institutional care settings. We may have a better law on paper, but without any source of proper independent scrutiny of placement decisions, and no accessible means to challenge assessments of incapacity and determinations of best interests, it's not at all clear people are much better off here.

Guest post by Sam Smith: Imprisonment is the new liberty

2012-01-12T06:56:00.000-08:00

I've not been able to give as much time to commenting on the recent ruling in C v Blackburn and Darwen Borough Council as I would have liked. The judgment is quite short, and for those with an interest in the evolving meaning of 'deprivation of liberty' it's a must read, as the meaning seems to be even further narrowed than Cheshire, P&Q and others would have suggested. Fortunately, Sam Smith has stepped into the breach and written a guest post on the ruling for you to read. Guest posts from a range of perspectives are very welcome here, if anyone would like to respond or offer other thoughts.

If a person is locked in a carehome and supervised all day, and only allowed out under supervision - if theycry and beg and shout and kick the door down (literally) in order to be let out- if they tell a judge they hate it there, they want to leave and they are'stressed', are they deprived of their liberty?

'No' says Jackson J in a recentCourt of Protection public judgement Cv Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP), whichis one of the first cases to rely on the Court of Appeal's widely excoriated Cheshire judgement.

The unfortunate C in this case isa 45 year-old man who was living in the community with his family. He sufferedan injury in childhood that may have caused brain damage, but lived with hisfamily and worked in his father's business. In 2000 C suffered another brain injury after falling off a roof.Thereafter he lived in warden controlled accommodation for 8 years.

In 2008 C was moved to arehabilitation unit - where things appear to have gone wrong. He made severalattempts to kill himself and after various unpleasantness ended up subject tothe rarely used guardianship provisions of the Mental Health Act. These wereused in conjunction with the Deprivation of Liberty Safeguards to keep him in acare home until his appeal went before a court.

In proceedings in the Court ofProtection, Jackson J (the same judge as in Neary)found that C was not deprived of his liberty. Both the experts think that C isin need of care - no one (not even his family) dispute this. C has supportive family who see him regularly.

Put simply - no one in this casehas a problem with the current care plan except C. If all the Court had donewas uphold the Standard Authorisation this case would be of little note exceptsome comment on the overlap between the MHA and MCA of technical interest onlyto people like me.

The problem here is thepernicious redefinition of 'Liberty'and the deprivation of same. The Judge in C's case is applying a recent Courtof Appeal judgement Cheshire West andChester Council v P [2011] EWHC 1330 (COP) . In that case a severelydisabled man was found not to be 'Deprived of His Liberty' because hisdisabilities were such that all of the restraints and so forth would have beennecessary in any conceivable setting. It was not society, but his ownlimitations, life that had deprivedP of his liberty. In legal terms therefore P is merely 'restricted' of hisliberty. Therefore P in effect could be restrained in a care home without anyprocess of law like sectioning or the DoLS.

In P's case this view may bereasonable. It may be in his interests. I am less clear on how C's placement isinevitable given that he lived in the community (albeit in warden controlledaccommodation) for eight years before it was necessary to detain him, and giventhat the independent expert social worker recommended rehabilitation.

The difficulty with thesejudgements though is not the instant cases. It is their consequences. I havealready commented recently on AnnaRaccoon's excellent site about the problem with the judgement in Cheshire.It can be succinctly stated as this -

If P is not deprived of hisliberty then he gets no Mental Health Act or Mental Capacity Act Safeguards. Nolegal process is used and there is no appeal or review process.

So in practice the determinationthat P is 'too disabled' to be deprived of his liberty will be made on thebasis of an unchallenged assertion by, um... council workers. That is it. A SocialWorker says Bob or Betty is so disabled that there is no alternative but tolock them up and that is pretty much it. Off they go and "No Bob you can'tappeal".

Unless it is qualified, theconsequence of these judgements is that, as this interpretation is taken upcouncils will start to use this reasoning. People will be locked up who couldlive independently. People with nothing wrong at all will bedetained. It will be a temptation for the dishonest, or for the cash-strappedand a pitfall for even the kindest and most honest. Elderly Milly, 75,complaining about the council? - 'clearly' has dementia so off to the care homewith Milly! Sid has schizophrenia - arguing with his carer again? - off to thehospital and none of that nasty messing about with sectioning, tribunals andsecond opinions.

As an occasional McKenzie FriendI have to say that nearly every single dispute about adeprivation or restriction of liberty I have ever heard of turns on adispute about the degree of disability or appropriate care. In every case whereP or his family challenges a 'Deprivation of Liberty' they argue that P has nodisability, that P's disability is of lesser degree than the authorities allegeor that P's care is too restrictive and not made necessary by P's disability.

The Cheshire West Judgement short-circuits the purpose of the DoLS. TheDoLS are a process for documenting that a person to be detained has adisability, of a degree that renders them incapable of making decisions aboutresidence and care, and it is necessary for them to be detained. According to Cheshire West if these criteria are metthen the DoLS do not need to be used. Under this reasoning when is anyone deprived of their liberty.

The reason for the extraordinarysophistry of the judgements I refer to is of course resources. There are arounda million people in this country said to lack Mental Capacity to a greater orlesser degree and a fraction of them (still tens of thousands) requiredetention. The Deprivation of Liberty Safeguards should have been simple, quickprocedures for authorising such detentions and allowing appeals. Instead theywere written by the members of this country's worst government in living memory- the New Labour Government under Tony Blair.

The Deprivation of LibertySafeguards were not a policy of the

government - instead they wereimposed by the European Courtwhich quite reasonably thought that the previous position (where people couldbe locked up without due process) was wrong. Rather than embrace this positionand try to create procedures that real people could use, NewLab advisors andcivil servants instead create a process that even judges are unsure of. Even inthe case of C, Jackon J hedges his bets and caters for the possibility he iswrong about the question of Deprivation.

The Safeguards are roundlyregarded as impenetrable, unfair and fabulously expensive to operate. They areunfair even on those conscientious Social Workers and Doctors who try tosupport their clients' rights. Mental Capacity practice is like juggling withknives - and the stakes can be a professional's career or a client's freedom.

Jackson J goes to great lengthsabout how much better the Mental Health Act is for its clients than the MentalCapacity Act. It is cheap, fair and accessible. He is right - MargaretThatcher's 1983 legislation is still going strong whilst Blair's 2005legislation is limping out of the door.

I have pointed out before thatthese procedures could be made much cheaper. Firstly, assuming (as does 39 Essex StreetChambers in their recent newsletter) that Jackson J and the Court of Appeal arewrong and that these vulnerable people are in fact being deprived of their libertythere are several filters that could be put in place to make the system simpler.

The European Convention on HumanRights requires that all deprivations of liberty must follow a processprescribed by law and also that there be a 'speedy' right of appeal to a Court.These two requirements can be separated. Firstly the 'process' used in the DoLSor in detention under the Mental Health Act simply means that qualifiedprofessionals must fill in some forms.

The second, separate right is aright of appeal. Simply put this right should really only be engaged if someoneobjects. It is madness for expensive and sometimes avaricious lawyers andexperts to be instructed to argue about the care of someone when neither thefamily or the person themselves is.

The whole procedure is a problemfor Parliament not the Courts. The DoLS need to be junked. Cheshire West needs to be junked. We need a clear, reasonable andworking statutory definition of who is to be safeguarded with anabsolute minimum of ambiguity. The principles of the Mental Capacity Act 2005are fine but the whole enforcement and review apparatus is a bureaucraticnightmare. The Court of Protection frankly would be better replaced with anexpanded Mental Health Review Tribunal.

Where the Courts have erred is tolet Parliament off the hook by trying to ease the pressure on the system throughprogressively narrowing the scope of persons entitled to the Safeguards.Instead they should have stood up for people's rights and followed the letterof the law. This would have allowed the creaking of the system as it ground toa halt force the Government's hand.

Redefining Imprisonment as Liberty in the style ofGeorge Orwell's '1984' is not a solution and it ill becomes our Courts.

About the Author - Sam Smith is aformer Labour Councillor and Spin-Doctor who subsequently defected to theConservative Party in disgust at New Labour's illiberal laws. He sometimesassists litigants in person as a McKenzie Friend, charitable, for example inthe recent DJv TCBC case.

The Spartacus Report

2012-01-09T01:55:00.000-08:00

Wherever you stand on the political spectrum, I urge you to read the report, Responsible Reform, on changes to welfare system currently going through parliament – and in particular changes to Disability Living Allowance (DLA). It was launched today by an independent coalition of sick and disabled people, who self-organised through social media, including well known campaigners like Sue Marsh, Kaliya Franklin and others from The Broken of Britain. The report was written independently of any disability organisations or charities, but it has been backed by the Disability Alliance, Mind, The Papworth Trust, Scope, Bert Massie CBE & Ekklesia. Their research made a splash over the weekend when it emerged that even Boris Johnson had expressed concerns about these reforms, managing to achieve the impossible – getting the Telegraph and the Daily Mail to take notice of the risks and incoherence of these proposals.

The report targets in particular the proposed ‘PIP’ (Personal Independence Payment) benefit, that will replace DLA, although it also makes mention of other problematic welfare reforms. It’s hard to get animated about something so technical sounding, but these reforms look set to have a very real impact on the lives of disabled people. The government is proposing reforms that will reduce the overall expenditure on DLA by 20%. Bear in mind that the fraud rate in DLA is extremely low, at 0.5%, so we are looking at a cut to a benefit that appears to be largely premised on reducing expenditure, rather than ‘efficiency’. Many people rely on DLA to pay for the costs incurred by living with a disability; many rely on it to enable them to overcome barriers to work, meaning that counterintuitively cuts to DLA could result in an increase in uptake of unemployment benefits.

The authors used the Freedom of Information Act 2000 (FOIA) to examine the responses to the government’s DLA consultation, whose report painted a misleadingly positive overview of the public reception to the proposed reforms. The authors found that overall:

74% of respondents were against the proposals for PIP;
19% had mixed views; and
Only 7% supported it fully.

Opposition to individual aspects of the proposals was even greater, including 98% opposing extending the qualifying period for DLA from 3 to 6 months; 90% opposed the introduction of new assessments; 92% opposed the proposed changes to the review system; 94% opposed making DLA conditional on accepting advice and support. The authors argue that the government's own consultation report does not reflect the groundswell of opposition to their proposals. In fact, this is a pattern I have noticed in all the consultations I have requested the responses to under the FOIA, and I increasingly wonder if a requirement of public consultations should be to make available online all responses not marked confidential. Furthermore, if multiple choice options are run on consultation responses, the government should publish the results broken down by the category of respondent.

The authors also point out that the consultation method itself was flawed, being announced at short notice, conducted over the holiday period, and being shorter than a normal consultation period. Many would-be disabled respondents had difficulty accessing the consultation materials in an accessible format, and the consultation period ended after the welfare reform bill had already launched its passage through parliament. The consultation also relied on flawed statistics, claiming DLA had seen an increase in uptake of 30% over 8 years, when in fact the figure is closer to 13% - as DWP themselves admitted in August this year.

The report cites concerns expressed by the Joint Committee on Human Rights about the quality of the human rights impact assessment:

The quality of the impact assessments conducted within Government becomes increasingly important for the purposes of analysing potential discriminatory impacts when little wider detail is available. Concern has been expressed about the thoroughness and coverage of the impact assessments carried out by the Government.

The response of the Equality and Human Rights Commission expressed concern:

...about the impact this could have on individuals’ standard of living, and could be counter-productive to Government policies and initiatives to overcome barriers to work... the Commission has a number of concerns about the proposed reform of DLA, including a concern that if the proposals were to be implemented in their current form, they might potentially be in breach of equality and / or human rights legislation.

The report’s authors argue that the impact assessment fails to give an adequate indication of the negative effect of the proposed reforms on the human rights and equality of disabled people and carers.

I am not overly familiar with this area of public law, but I do really wonder if this consultation was lawful. We have already seen civil society groups challenging the lawfulness of the cuts on the basis of equality laws and public law on consultations, with varying degrees of success. The Fawcett Society’s legal challenge to the first austerity budget was unsuccessful, in part because they had delayed too long and the intervention of the courts would be academic. However, the judge did highlight that the arguments merited further scrutiny, and the case drew a good deal of attention to the impact of the cuts on women. In this case the argument is not only that the welfare reforms will have a disadvantageous impact on disabled people, including disabled children and their carers, but that the consultation process was fundamentally flawed. I am reminded that in recent cases like R (W) v Birmingham City Council [2011] EWHC 1147 (Admin), a judicial review of Birmingham’s decision to raise its eligibility criteria for community care was successful because Birmingham had failed to follow a lawful consultation procedure. In particular, the consultation was deemed unlawful because of:

A lack of clarity over the effect of the changes on disabled people’s lives
The consultation process was inaccessible to disabled people
There was little consideration of other available options

Reading the report, it may very well be that similar criticisms could stand against the DLA consultation, although if they do intend to seek a judicial review of the consultation process they will certainly have to move fast. There is evidence that elements of the proposed reforms are already being implemented, despite its not yet being passed in parliament, in echoes of the current NHS reform process. I wonder if civil society groups, or perhaps even the EHRC, might feel moved to support them in such an action given how widespread the impact is likely to be.

But even if you are not moved by the human rights or welfare arguments in this report, you might feel concerned to read that the proposed changes will involve rebranding and the creation of a new computer system that is estimated to cost £675m. And we all know how successful this has been in tax credits, identity cards, the NHS ‘Spine’ project...

If, like me, you haven’t been able to give as much attention to these issues around welfare reform as you’d like – perhaps you’ve been busy combating cuts to legal aid, higher education, schools, Sure Start, the NHS, libraries or saving the forests – here’s what you can do. Firstly, read the report, acquaint yourself with the widespread concerns that the government hasn’t been clear about in their own consultation. The report’s authors aren’t opposed to reform of disability benefits on principle, but they are concerned about the motivations for these particular reforms, the non-transparent way these reforms are being pushed through parliament and the lack of government responsiveness to the concerns of disabled people and disabled people’s organisations. Secondly, if you are concerned by the contents of the report, then consider emailing a copy to your MP (find out their details here). This isn’t clicktivism; your MP has a duty to consider the concerns of his or her constituents. Bearing in mind the report’s authors don’t have a big PR office behind them, I’m sure they’d also appreciate any blog or twitter support you can give them; the hashtag for tweeting your support is #spartacusreport.

3. DoLS v Guardianship - Summary and discussion

2012-01-04T08:54:00.000-08:00

Several knowledgeable bodies and individuals have suggested that guardianship under the Mental Health Act 1983 (MHA) might be a preferable framework for community based detention than the deprivation of liberty safeguards (DoLS). I have compared the two frameworks on a range of issues in two previous posts (Part 1, and Part 2). For those of you who prefer a printer-friendly word document, and would rather read this in one piece, here's a pdf version of all three documents that I've prepared (very kindly hosted by Celtic Knot Solicitors, so you don't have to create a Google Acount to read it). And, two days after writing this post here's a brand new DoLS and guardianship case, with a very interesting comment from Jackson J:

It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

If you’ve skipped to the end of these three posts, here’s what you’ve missed in a nutshell:

I’ve argued that the criteria for detention under the DoLS may be preferable to those for guardianship as a) guardianship uses an outmoded ‘status’ approach, whereas the MCA takes a ‘functional’ approach to a person’s capacity to make decisions about care and treatment; b) the DoLS ‘best interests’ criteria are better defined than guardianship’s ‘welfare’ requirement, they make explicit requirements for proportionality, and they require consultation with a wider range of parties. Furthermore, guardianship cannot as yet be applied to people with learning disabilities who are not abnormally aggressive or seriously irresponsible, which is a significant shortcoming in comparison to DoLS. However, guardianship is much more flexible than DoLS with respect to the location of the detention (DoLS being restricted only to hospitals and care homes). Furthermore, guardianship creates no authority to consent to medical treatment, or to address any other financial, care or welfare issues not contained within powers to require a person to live at a particular place, to attend medical appointments or training/educational activities, or to allow access to them by health and social care professionals. However, the MCA could be used to ‘top up’ these limited powers, and guardianship powers – as a MHA regime - would ‘trump’ any decisions made under the DoLS or by deputies. [Edit 15/01/12: The ruling in C v Blackburn with Darwen confirmed this. S2-3 Schedule 1A MCA says that if P is subject to a MHA regime and 'That includes any requirement as to where P is, or is not, to reside', then P is ineligible to be detained under the DoLS if 'the authorised course of action is not in accordance with a requirement which the relevant regime imposes'. The DoLS cannot authorise detention in conflict with a decision by a guardian. However, the point being raised by the OS wasn't about guardianship and DoLS per se, the concern was that the decisions of a guardian were not subject to any kind of judicial oversight from the Court of Protection to determine whether they were in a person's best interests. Given the tribunal for guardianship examines the general issue of reception into guardianship rather than the specific decisions of the guardian, and there is no clear statutory framework for the decisions of guardians, it is hard to know how individual decisions by guardians could be challenged - or upon what grounds. Edit: 20/01/2011 The fact the specific decisions of guardians are not subject to any obvious review framework may be problematic in the light of the recent ruling in Stanev v Bulgaria.]

Guardianship offers families much greater power than the DoLS. Because the appointment of the nearest relative under the MHA is ‘automatic’ and not on the basis of selection, there is less scope for avoiding appointing relatives who object to the detention – which is a risk under the DoLS. Under the DoLS, concern has been expressed that supervisory bodies may avoid appointing family representatives who oppose the detention; there are weak safeguards against this. Furthermore, the detention can be authorised against opposition from the family representative, who must apply to court under the appeal mechanism. There are many reasons to believe this may be difficult for some representatives. Under guardianship, the nearest relative can successfully oppose an application for reception into guardianship, or request a discharge. If the local authority wish to displace the nearest relative, they must apply to court to do so: disputes in cases like Neary v Hillingdon would be likely to come to judicial attention far earlier under this regime.

Guardianship has a much stronger framework for review and ongoing monitoring of the conditions of detention by the local authority than the DoLS do; this is a significant advantage. As things stand, both frameworks are very weak for ensuring detainees’ Article 5(4) rights to appeal are upheld. This is because unlike for detention under the MHA, there is no automatic referral of the detention to either a court or tribunal. Because people who are likely to be subject to either regime are likely to require help (sometimes considerable) accessing their right of appeal, both regimes rely upon other parties helping them to appeal. In both cases, the parties who could assist them in this may have conflicts of interest in doing so where they support the detention but the detainee objects. Independent advocacy could remedy this, but the duty to refer is weakly enforced for the DoLS, and there is a much weaker obligation to appoint an independent advocate under the guardianship regime. An automatic referral to a court or tribunal has been recommended by many, and whilst I support this recommendation it would undoubtedly increase the costs associated with community based detention. This would undermine the case that an amended guardianship regime would be cheaper than DoLS. I have also explored the differences in the powers of tribunals and the Court of Protection in determining appeals, and have argued that the broader powers of the Court of Protection may be desirable in certain community based contexts. I have also argued that there is inadequate information in the public domain about the costs of DoLS to argue that appeals to the Court of Protection are are intrinsically more expensive than tribunals. [Edit 15/01/12: From my tentative costings, the legal costs attaching to DoLS appeals in the Court of Protection are extraordinarily high, and serious consideration of a tribunal process seems sensible.]

Terminology and stigma

I just want to say a few words about terminology and stigma, as they are often cited as factors against a MHA regime. In the first place, guardianship is obviously a very different regime from detention under the MHA; and I am unclear whether any studies or research has been done to suggest it carries the same stigma (certainly I can’t find any). And indeed, for some people working in community care, I think guardianship may be more acceptable than ‘deprivation of liberty safeguards’ as a title for frameworks for detention. Initially the DoLS were to be called ‘protective care’, and in all but one of the Bournewood Consultation responses I have read respondents were pretty keen on this; I’m not clear why it was changed. The Mental Health Alliance have expressed a preference for this term, as it is less likely to be offputting to care managers, social care professionals, and perhaps – I can imagine – to family members who support the detention. I can definitely see the logic of this approach; care homes are far more likely to agree that a person needs ‘protecting’ than ‘depriving of their liberty’, and perhaps would be more likely to make use of a regime bearing that name. I also wonder sometimes whether the courts would be more willing to agree that a person needed ‘protective care’ than that they were deprived of their liberty; they seem (in my view) to be excessively taken by factors like whether a person’s bedroom is ‘personalised’ or ‘homely’ and not enough to the degree of control exercised over them.

However, I think we need to be cautious about the language of guardianship. I fully acknowledge that ‘guardianship’ under the MHA means a very different thing to guardianship in most international jurisdictions, but in debates in the international disability rights community it carries a very heavy negative valence. Like ‘protection’ it is regarded as a paternalistic and disempowering term. I do wonder if the label ‘deprivation of liberty safeguards’ at least keeps people’s minds attuned to the issues of liberty that are at stake here. I don’t want to single anybody out, but reading through the Bournewood Consultation responses, and looking at the massive mess that is the DoLS and the DoLS case law, I do get the feeling that many actors take issues of liberty in the community far less seriously than in a hospital setting. There is nothing in Article 5 to support that view. I’m sure if you asked Mr DE (JE v DE), or Steven Neary and his family, they would not support that view. I’m sure if you asked the near-hundred people abused in supported living services in Cornwall, who were said at the time to be deprived of their liberty, they would not support that view. In any case, it’s not often suggested that the language of guardianship and protection carries a stigma all of its own; but I think for many people it just might, and there may be advantages to retaining a focus on liberty.

Monitoring and enforcement

The current monitoring arrangements for both the DoLS and guardianship under the MHA can be summed up a single word: crap. I’ve written previously about the problems for CQC in monitoring DoLS, and a lot of the problem – it has to be said – is attributable to two factors. The first, that monitoring is left to the ordinary compliance inspectors instead of a specialist body like the MHA commissioners. The second, that the Department of Health in their wisdom have blocked CQC’s only avenue to monitor the activities of the supervisory body by cancelling the annual performance assessment. Guardianship is technically monitored by the CQC in their MHA monitoring context, but there’s no real discussion of it in either of their last two reports on the MHA. This is fair enough in some ways, it’s a much smaller population, but I think it’s something that would need to be addressed if we do go back to the drawing board with DoLS. It’s also worth considering how – if people are potentially subject to detention under guardianship in settings that don’t have site inspections by the CQC – we will ensure compliance with OPCAT through regular visitation to places of detention.

Aside from all the things that can go wrong with the review and appeal processes, one of the fundamental problems with the DoLS is underuse. Simply put, care homes and hospitals are not seeking authorisation to detain when they should be. This is for a whole range of reasons:

There is such poor agreement over the meaning of deprivation of liberty that even professionals can’t agree (some might say that even the judges can’t agree...), so it’s unsurprising that care home managers and ordinary doctors, who have plenty more on their plate than keeping on top of Court of Protection jurisprudence, don’t really understand what’s expected of them. I recognise the dangers of a statutory definition, but note that it would reduce the degree of confusion overall and could always be 'topped up' by regulations if the ground shifts again in Article 5 case law. The Joint Committee on Human Rights' [89] statutory definition is a good start (in fact, it basically encapsulates Cheshire), but some cases would still be eluded by it and it requires more work. For penalties to apply for non-compliance, however, clarity is a must.
Care providers are said to be put off by the phrase ‘deprivation of liberty’, and don’t want to acknowledge that they are restricting people’s liberty because they see themselves as helping and protecting people. Ben Troke has written that Cheshire in fact supports this view.
The DoLS involve a lot of work for both care providers or hospital staff, and the supervisory body, which is a disincentive. I often hear people complain about the forms in particular, although some have responded that the forms are designed to meet a legal need and can’t be altered (although apparently the boxes to fill in are too small and inflexible, which is clearly not a legal requirement; and I would think that in this day and age of technological whizzery somebody could set up the forms so that you don't need to re-enter the same 'cover sheet' details on each one?).
The DoLS invite scrutiny into care planning and care delivery which may very well be unwelcome. They also offer a means for any awkward or objecting family members to litigate the very bodies that are supposed to be applying the safeguards, which is potentially a serious disincentive.
The prospect of a care home, or even a hospital, being litigated for unlawful detention by a person who lacks capacity and subject to their ‘complete and effective control’ is very unlikely indeed. Given the likely vast scale of unlawful detention (based on the low numbers of DoLS authorisations in contrast with projections, and also regular anecdotal reports, and also comments of the CQC in their reports on DoLS), the number of cases of unlawful detention hitting the courts are minimal. A person is unlikely to get to court without the assistance of a framework like the DoLS.

Given that there are so many disincentives to apply a legal framework for community based detention, and so little risk of adverse litigation if they don’t (indeed, I’ve argued that for privately funded care home placements, and for supported living services, there is no clear risk at all), what pressure is there for care providers – or even hospitals - to comply with either a DoLS or a guardianship regime? Guardianship under the MHA is not a panacea that will solve this, the most significant, of all the ills under the DoLS regime. In fact, given that guardianship relies upon an application by the local authority, and there is no obligation upon the care provider, it’s unclear how detentions within privately arranged care would ever come to the attention of the supervisory body.

Guardianship may address some of the problems in the DoLS regime around conflicts of interest and the rights of families. If an automatic referral to the court or a tribunal were introduced it may offer a more adequate Article 5(4) mechanism. The guardianship criteria could be amended to reflect modern approaches to mental capacity, and a best interests checklist approach. However, what guardianship will not do is ensure compliance with the regime on the ground; it will not ensure it is applied where it should be. I have thought, and thought, and thought about this problem. I think the DoLS regime, like the rest of the MCA, paradoxically tries to promote autonomy whilst already assuming that a disabled person - whose liberty is restricted by others - is in a position to challenge human rights violations through formal legal channels. This is clearly a highly problematic assumption. There must be some other mechanism to pick up on unlawful detention, and ensure they are subject to some kind of external monitoring framework. I think there should be automatic penalties for providers and public authorities who do not apply legal frameworks for detention when they should, to increase pressure to comply. I can think of only one body potentially in a position to do this: the CQC. And, as I have written many times previously on this blog, currently I can't see how they are up to this job.

2. DoLS v Guardianship: Appeal and review mechanisms

2012-01-04T08:53:00.001-08:00

This is the second post in a series of three comparing guardianship under the Mental Health Act 1983 (MHA) with the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS). The first post explains why some people have argued that guardianship would offer better safeguards than the DoLS against arbitrary detention. In that post I explore the criteria for entry into each regimes, the coercive powers each regime affords public bodies, and the role they give to families. In this, the second post, I will look in detail at the appeal mechanisms, and consider whether they are compliant with Article 5(4) of the European Convention on Human Rights. If you are short of time, I strongly recommend you skip to the third and final post, which offers a summary and some thoughts on why both regimes for community based detention will have significant difficulties in practice.

Not only entitled, but enabled...

Any framework providing for deprivation of liberty that is compatible with the European Convention on Human Rights must ensure that, in accordance with Article 5(4):

‘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.’

As I have argued elsewhere, I am not at all convinced the DoLS currently achieve this. The problem is that they follow the letter of the law but not the spirit. A person detained under the DoLS is 'entitled' to take review proceedings, but the reality is that the majority of people deprived of their liberty under the DoLS (or under guardianship if such a framework were to replace it) will find it very difficult to access their right of appeal under s21A MCA without the support of others around them. The key point is summed up by Jackson J in Neary v Hillingdon:

‘...there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.’ [202] (emphasis mine)

I am unaware of any Convention jurisprudence on this point (I just had a look through Mowbray’s excellent book on positive obligations, and can see nothing in there on this issue). I suspect this is because if a person is enabled to take their case to the ECtHR, they are almost certainly likely to have been enabled to have this issue heard in a domestic court, and so the enabling issue is unlikely to reach this point. I would like to think, though, that the ECtHR would endorse Jackson J’s comment on positive obligations under Article 5(4).

Review of detention by the supervisory body

As Richard Jones points out in his 2007 article, guardianship does place much stronger explicit requirements on the supervisory body (which is to say, the local authority), to monitor the person’s welfare than DoLS do. A guardian must visit the person at least once every three months, and they must be visited by a doctor once a year (regulations). By contrast, and somewhat inexplicably, under the DoLS it is the responsibility of the relevant person’s representative to ensure the managing authority is complying with the conditions of the DoLS authorisation, and the responsibility of the managing authority or the representative to alert the supervisory body to any change in the person’s circumstances which may mean the authorisation criteria are no longer met. Given that it is almost always the case that the supervisory body are held responsible for unlawful detentions, and that detention that does not comply with the conditions and criteria under the DoLS would be unlawful, this seems a rather strange state of affairs. It seems far more sensible that the supervisory body - not a relative or the care provider - take on the monitoring role. Especially given that they – not the managing authority or the representative – are those with the experience and knowledge to determine whether the byzantine processes of the DoLS are being followed appropriately.

Guardianship also comes with an automatic renewal requirement (within the last two months of the authorised period), which requires the appropriate officer to produce a report stating that the conditions for reception into guardianship are still satisfied (s20(6) MHA). In contrast, a supervisory body under the DoLS can refuse to conduct a review, even if requested by the representative, and can also rely on old assessments to renew an authorisation if they believe they are still accurate and they were conducted within the last 12 months. It is hard to know how they could satisfy themselves of this without conducting a further assessment; and in Neary an inadequate review was held to breach Article 5(4). This means that potentially a person could be detained without any kind of visit from the supervisory body for up to a year, which surely cannot be an acceptable state of affairs. In this respect, the DoLS require significant amendment to offer a robust monitoring and review framework, and could borrow a lot from the guardianship regime.

Appealing against a detention in court

Unlike detention under the MHA, neither the DoLS, nor guardianship, automatically refer detention to the court/tribunal for review. Under the DoLS, it is envisaged that a person’s ‘representative’ (usually family or a friend, sometimes a paid advocate), or an IMCA will help them trigger the appeal process. But as the Mental Health Alliance pointed out in 2010:

[The safeguards depend] far too much on family representatives who may be elderly or disabled themselves, and there is far too much scope for supervisory bodies to protect their actions from scrutiny by selecting representatives who agree with them, by removing those who do not, or by failing to provide them with enough information or support and by batting away requests for review.

The Neary case is a good example of how disinformation, deceit and the power imbalance between a supervisory body and a family representative can dissuade a person who is manifestly opposed to the detention from challenging it in court. This may be particularly the case if the supervisory body is funding a package of care a person and their carer may rely on. In the Neary case, the role of the IMCA countering this disinformation and ensuring Steven's father understood the right of review was pivotal.

Where representatives who support the detention are selected over those who do not, others may still trigger the s21A MCA appeal mechanism, but they may have to pay a fee to the Court of Protection, and they will not be automatically entitled to legal aid (although they may be entitled to it subject to means and merits tests). They may also have trouble drafting an application without any right to view the documentation pertinent to the detention. But a more serious problem, in my view, will occur when all parties bar P support the detention. Under such circumstances, how is P to have his appeal heard? The answer to that should be through the action of a s39D IMCA. Under s39D MCA a supervisory body must instruct an IMCA if it appears to them that ‘without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights’. I have to say, I would feel more comfortable if that said ‘P or R’, given that the conjunction ‘and’ suggests that P and R’s interests always overlap. In any case though, I would imagine that a court called upon to interpret this would have to do so in accordance with Article 5(4) ,which nowhere says that a person’s right of review for detention is conditional upon their family supporting that right. And so, if P is objecting but R isn’t helping them appeal, I would think a supervisory body would be duty bound to appoint a s39D IMCA to help them exercise their right of appeal. That IMCA is then duty bound to help P ‘exercise the right to apply to court, if it appears to the advocate that P... wishes to exercise that right’ (s39D MCA). The question of whether P’s appeal should be heard even if he does not object – given that he lacks capacity in relation to where he should reside – is also an issue worthy of consideration in relation to Article 5(4).

I think the importance of s39D IMCA’s in triggering the appeal mechanism may be vastly underestimated by many players in the DoLS. A lot of professionals (health and social care, legal too) seem to regard IMCA’s as if they are some kind of underqualified non-experts who take up time and resources snooping around their professional activities and asking annoying questions. This may well be why referrals are so much lower than you would expect from the number of authorisations, and why – when I checked a year ago – a third of local authorities had never made a s39D referral (I have been trying to get more recent information on this from the Department of Health since March 2010; I won’t bore you with this sorry saga of obtuseness and non-transparency, but they claim they will now be publishing something on it this year). To see IMCA’s in this way is to fail to understand that they are the only real guarantee of a right of review where there are serious conflicts of interest between P and P’s representatives, or where P’s representatives does not appeal on their behalf for other reasons. It is also to fail to understand that whilst they may not have a doctors’ or social workers’ professional expertise in relation to health and social care, they are expert in the MCA itself.

I have to say, given the very low numbers of reviews, and the lack of mentions of IMCA’s themselves triggering appeals, I do worry that IMCA’s are not aware of their statutory duty to help P exercise his right of appeal. On any reading list for any IMCA should be the ruling in A v A Local Authority (2011), which makes clear that P has a fundamental right to have his appeal heard even if all parties are in agreement that detention is in his best interests. Whether or not an IMCA should help P appeal does not turn on whether it is in his best interests; likewise whether or not litigation friends should help P appeal does not turn on whether it is in his best interests. Article 5(4) rights are absolute, not conditional. I do wonder if in future we may see litigation against IMCA’s themselves if they fail to assist P in exercising his right of appeal. As an aside, though, this may be a moot point if Cheshire is taken to mean that P is not detained unless P’s friends or family are offering an alternative residence and disputing his placement...

In terms of ensuring a person is assisted in their right to an appeal, guardianship may be just as deficient as DoLS. It comes with no automatic referral for a review by a court. In fact, his rights of review may be somewhat weaker than under the DoLS. P can apply to the tribunal for discharge once within the first six months of the day the application was accepted (MHA s66), once within the next six month period of renewal, and once per year thereafter. By comparison, s21A MCA contains no such limitations on when a person can apply to the Court of Protection, or how many times.

If P’s nearest relative has already objected to reception into guardianship, then P will be discharged or the case will come to court in the guise of whether the nearest relative will be displaced. But if P’s nearest relative does not object, then unlike under the DoLS nobody else but P can bring an appeal. For example, other family members who object may be unable to, although they could attempt to support P in mounting an appeal. As under the DoLS there is provision for advocacy support for P in the form of IMHA’s (Independent Mental Health Advocates); s130A MHA provides:

‘The appropriate national authority shall make such arrangements as it considers reasonable to enable persons (“independent mental health advocates”) to be available to help qualifying patients.’

This seems to be much weaker the hard duty of s39D MCA to appoint an advocate to help a person who is failing to exercise the relevant right when it might be reasonable to expect them to. Of course, if guardianship were to be used for detention one could perhaps read the Neary ruling into it – that failure to appoint an advocate to support a person to exercise their Article 5(4) rights is in itself a breach of Article 5(4) [32].

In summary, I think if guardianship were to supplant DoLS as a mechanism for review of detention it would be best of all if reviews by a court came up automatically as under MHA detention cases. In fact, to fail to do so might in itself be discriminatory under Article 14 ECHR in comparison with the MHA regime. In The Secretary of State for Justice v RB & Anor [2011], Arden LJ accepted that if tribunals were able to discharge people to conditions amounting to detention in the community, the secretary of state would be duty bound to show why this lesser right of review for detention was not discriminatory under the Convention [64]-[65]. In a wider sense, I would suggest that the weaker rights of review under the DoLS than the MHA may also, already, be potentially discriminatory under Article 14.

But simply tagging an automatic review mechanism onto guardianship may not be enough to address the Article 8 issues that increasingly plague appeals under the DoLS, if it did not also allow other parties to appeal against it or act as parties to the case (as s21A does). If guardianship were to replace DoLS, it should be born in mind that P has Article 8 rights in relation to other parties than the Nearest Relative, and they will have Article 8 rights as well. One example might be certain kinds of non-related paid carers, for example like E's 'foster mother' in G v E (2010). Better access to legal aid for those parties may also be required, as the Court of Protection has itself indicated in relation to reviews of detention outside the scope of s21A MCA.

I also wanted to make another point; if the MHLA want to promote guardianship on the basis that it will be cheaper than DoLS, I believe the question of an automatic review mechanism will be their downfall. At present, very, very few cases under the DoLS are appealed; a situation which from the perspective of the Article 5(4) rights of detainees is highly problematic, but from the perspective of the public purse is rather convenient. It was never clear why – bar wishful thinking by accountants perhaps – it was thought that only 2.5% of DoLS authorisations would result in an appeal. It strikes me that as deprivation of liberty is increasingly defined in terms of objections by P, and disputes about alternative residences, we should expect to see the majority of cases ending up in court.

The destination of appeals

From the very beginning, one of the biggest debates around the DoLS has been whether the final destination for appeals should be the Court of Protection or a tribunal (like the mental health tribunal). Perhaps one of the reasons the MHLA and others promote guardianship, is because guardianship is appealed in a tribunal setting, not the Court of Protection. Contrasts are generally drawn on the following points:

Delays. ~~Whereas an appeal against detention to a tribunal must be heard within six weeks~~ There are no statutory targets for a tribunal hearing, although the Tribunal Service aims to hear 75% of cases within 9 weeks (last year it achieved only 51% within this time limit). There is no public target for the Court of Protection to hear DoLS cases (although, the Court of Protection do attempt to fast-track DoLS cases). This issue may need looking at, but I am unaware of any public data on delays for DoLS hearings specifically. Solicitors often complain about delays at the Court of Protection, but from a research and policy perspective it’s difficult to see how serious this problem is; it’s one of the many data-holes in our knowledge about the DoLS.
The Court of Protection is said to be more costly to the public purse than a tribunal. It’s mostly lawyers who say this and I don’t dispute that this is so in their experience, but I would make a few points. Firstly, there is a dearth of good quality overview data to back this up. I’ve written to a few local authorities asking for help drawing together some ‘typical’ costings for DoLS appeals (the typical costs, not including the time of their social care and legal staff, were quoted as being between £4k-£11k per appeal). I also wrote to the Ministry of Justice who essentially seem to be keeping no records whatsoever about how much the DoLS are costing the courts themselves. They did confirm, however, that although the Family Division of the High Court hear most DoLS appeals at present, they don’t seem to have been given any of the cash awarded by the Department of Health for DoLS appeals, so it wouldn’t be surprising if High Court judges were really feeling the strain. DoLS and deprivation of liberty judgments regularly refer to what a burden appeals and reviews are/will put on the Family Division. I’m really concerned that judges may be shaping the meaning of deprivation of liberty (unconsciously or otherwise) in response to concerns about opening the ‘floodgates’ to cases. Yet we have absolutely no idea whether the resource burden really is exceeding the money allocated by the impact assessment. A second point is this: very few appeals under the DoLS get to court, and those that do typically have at their root complex disputes engaging Article 8 as well as Article 5, and very likely a whole bunch of other best interests and community care law issues to boot. This seems, to me, to be an unfair comparison with the issues appealed in a typical tribunal under the MHA. Run of the mill DoLS cases may not (pre-Cheshire at least) involve such disputes, and the majority of appeals could potentially be dealt with quite swiftly even within the Court of Protection. [Edit: 06/01/2012 I'm putting together some costings on DoLS appeals, which I'll post on this blog later this month, and I have to say the costings so far look absolutely horrific... more on this to come].
The Court of Protection is said to be more costly to litigants than tribunals. This cannot be the case for P and P’s representative if they have brought the appeal, as they will be publicly funded for legal aid and will not have had to pay a fee to the Court of Protection to apply under s21A. It may be true if the case has been referred to the Court of Protection by a public authority, however, as legal aid is not automatically available under s15/s16 MCA (although if it involves Article 5 and possibly even Article 8, it probably should be). For litigants other than P or R, who might mount appeals under s21A MCA, there is no automatic entitlement to legal aid - and my data from the Court of Protection in December 2010 suggests that as many as 8 of the 30 s21A appeals it had received by then were from litigants in person. Other parties than P and P’s representative are not generally represented at tribunals in their own right (although I'm reliably informed that tribunals can appoint anyone as a respondent, but in practice rarely do), so the comparison with their costs is probably a moot point.
Tribunals are local to P, whereas the Court of Protection (often) sits in London. It is my understanding that the Court of Protection are trying to address this with more regional courts, and I am aware of cases where Court of Protection judges have made site visits to a person’s place of residence to resolve disputes. A tribunal generally sits wherever P is detained to, but this isn’t necessarily the case for community based forms of detention. I'm unsure how often a guardianship tribunal would typically sit in P’s care home, or supported living service? However, it’s probably fair to say that most people live closer to a hospital than a regional court, and so the chances of it being a more convenient location for P and P’s family are probably greater overall with a tribunal than the Court of Protection.
P attends a tribunal in person, but typically does not attend Court of Protection hearings. The DoLS and the MHA relate to very different populations, both in terms of capacity (obviously), but perhaps also in terms of physical health needs (the majority of DoLS detainees are people in later life with dementia). I’m unclear whether that population would attend a tribunal in person as frequently as patients detained under the MHA do – perhaps mental health lawyers can comment on this? But attendance in court is a really neglected point, I feel, in discussions around the Court of Protection. In a very few cases mention is made that the judge has either met P (e.g. W v M), or that P wished to attend court (e.g. Re MP– although it’s not actually clear whether he actually did or not!), or that the judge did not meet P but ‘feels like they know them’ on the basis of what others say about them (e.g. MIG and MEG). In fact, I’m sometimes troubled when reading Court of Protection case law how often it is not clear what P themselves wants, whether P is aware of the proceedings, whether the judge has even met P. I recently asked Judge Lush whether P typically attended Court of Protection hearings; Judge Lush said that it did sometimes happen, but was not typical. I asked if judges often made efforts to meet P; Judge Lush’s response to this was fascinating. Apparently when the new Court of Protection rules were being drafted the judges of the old Court of Protection had asked that their powers to visit P were replicated in the new court, but this request was rejected by the rules group as there were misgivings about judges meeting directly with litigants in the absence of counsel for other parties (Judge Lush points out, though, that many parties in the Court of Protection are litigants in person and have no counsel). Neither do the rules prohibit it though, and it is my understanding that many judges still make efforts to visit P. I do find it odd to think about justice being done without the litigants ever meeting the judge. (As a personal aside, I was involved in family court proceedings as a child, and was furious that a judge made decisions about contact with a parent without ever meeting me. I still felt sidelined and powerless in the process. Not all will be bothered by this, I grant you, but it's a point I think needs consideration.) I also wonder whether there mayn’t be Article 6 implications if it is practical obstacles – like distance – that prevent P from attending court hearings that will have such a profound impact upon his life. I wonder what it is like for judges themselves, to be make such life changing decisions about persons they have never met - no wonder Baker J wanted to meet 'M' in a matter of life and death. However, with the growing workload of the Court of Protection this may become increasingly difficult in terms of judicial time and resources.
The Court of Protection is said to delve too deeply into case management. I’ve heard this view expressed by lawyers and someacademics, and not having studied this point in detail I don’t really feel in aposition to appraise what they mean by this. I thinka comparative study of DoLS appeals and mental health tribunals could be veryfruitful and interesting. However, forreasons I’ll come onto when I discuss the powers of tribunals and the Court ofProtection, I do wonder if disputes around deprivation of liberty in thecommunity do tend to raise more complex issues around care planning, which necessitates a greater degree of case management in disputes.

The powers of tribunals and the Court of Protection

In respect of Guardianship, the Tribunal has only these powers:

Where application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied—
(a) that he is not then suffering from mental disorder ; or
(b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship. (s72(4) MHA)

In respect of DoLS, the Court of Protection has the following powers under s21A MCA:

(2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—
(a) whether the relevant person meets one or more of the qualifying requirements;
(b) the period during which the standard authorisation is to be in force;
(c) the purpose for which the standard authorisation is given;
(d) the conditions subject to which the standard authorisation is given.
(3) If the court determines any question under subsection (2), the court may make an order—
(a) varying or terminating the standard authorisation, or
(b) directing the supervisory body to vary or terminate the standard authorisation.
(6)Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

Similar powers pertain for urgent authorisations. I have already discussed the issues around what criteria must be satisfied in Part 1, but I will reiterate that it strikes me that the court must satisfy itself of much more stringent criteria under s21A MCA than under s72(4) MHA. And that furthermore, it strikes me they are likely to consult a wider range of views, and the evidence and parties to the case are likely to be less medically dominated under the MCA than the MHA.

S21A MCA seems to me to be a much, much more flexible legal device than s72(4). For a start – unlike the tribunal – the Court of Protection can make declarations as to whether a person has been unlawfully detained; a separate application would be made for a person unlawfully detained under an MHA regime. The ability to vary the standard authorisation is very significant; the court can direct the conditions under which a person is detained, which offers them much greater power over details of care and treatment than a tribunal has. For some, this may be a bad thing and risk the court straying too close to ‘case management’, but I have heard tribunal judges bemoan their lack of comparable powers to do anything but recommend a particular course of treatment. If a person is detained to hospital under the MHA, the tribunal can make recommendations (non-binding) about his treatment if they do not discharge him (s72(3A)), but even this power to recommend doesn’t seem to apply in the case of guardianship. John Horne (himself a tribunal judge, as well as solicitor, social worker and academic) has complained that ‘...the twin straitjackets of easy-to-satisfy statutory criteria and limited powers enable the Tribunal to readily adopt the role of a toothless tiger’ (that quote is from his talk at the SLSA 2011, but you can watch another version of this talk, given in Manchester 2010, here).

In the context of community based forms of detention, a simple power to discharge may become problematic. Unlike community care, a person is not detained to hospital for the purposes of giving them a long-term home (which is not to say that people – especially those with learning disabilities – do not languish in hospitals for far longer than anyone considers desirable). If detention is taken to mean the extreme end of the spectrum of restrictions on liberty, it becomes tricky to understand what discharge means if a person is likely to always be subject to significant restrictions. In this sense, despite my criticisms of the Cheshire ruling for leaving people subject to significant day to day restrictions with very few safeguards, it is actually quite helpful. If ‘detention’ means detained to a particular setting when another is available, and preferred, then it’s pretty clear what ‘discharge’ means: it means to permit a person to live in the preferred place. ‘Discharge’ from detention could also be meaningfully applied in a context that eludes the Cheshire ruling, and that is cases like that of ‘Alan’ in D Borough Council v AB [2011], where a person can – demonstrably – live with fewer restrictions, but they are imposed to achieve a particular end (in this case, to prevent Alan from having sex; but one can also imagine similar issues for preventing contact with particular persons, or perhaps to prevent a particular behaviour, like stealing or drinking, or perhaps because there are risks specific living in a particular community).

But for very many cases – like that of ‘P’ in Cheshire, like MIG and MEG – it’s hard to make sense of what ‘discharge’ could realistically mean. However, one could make sense of varying the conditions of detention. For example, by requiring that a particular treatment or form of support be made available; by requiring that a person be detained to a different setting; by requiring that they be given contact with a particular person who is currently prohibited. This, clearly, strays into the territory of general best interests, but it is attached to issues of detention under the DoLS if the current form of detention is not the ‘least restrictive option’ or in a person’s best interests. Linked to a s21A appeal, of course, the Court of Protection may also be called upon to use its powers under s15 or s16 to make declarations or orders relating to P’s capacity and best interests. It is my understanding, talking to staff at the Court of Protection, that very often DoLS appeals brought under s21A are often entangled with ‘pure’ best interests, and it may be that where these issues need resolving as well it is actually more efficient to address then in the Court of Protection than in a separate venue like a tribunal.

The risk with the broader powers under the MCA and DoLS is of cases becoming lengthy and costly; I once heard Richard Jones describe DoLS appeals as a ‘Rolls Royce service for the few’ at a conference. A wider range of experts and witnesses may need to be consulted, a wider range of issues considered, there may be more parties to a case, and all of this adds to delays for court users, a strain on the courts, on the Official Solicitor, and obviously a strain on the public purse. My concern, however, is that a more reductive approach will miss out important Article 8 issues that are generally attached to Article 5. Furthermore it may result in people being inappropriately detained or inappropriately discharged, because no variation which might improve the conditions of a necessary detention can be directed by the court. I think at present there is too little solid information in the public domain about the costs of the DoLS appeal process, delays, duration, and how the issues around best interests and Article 8 are managed to take an informed view on whether we could replace them with a simpler ‘welfare’ and ‘discharge’ model. Solicitors with experience of both may feel better able to take a better informed view on this, and I would welcome their thoughts (always space for a guest post...).

Summary

So, rather unhelpfully, I leave the question as to which appeal mechanism is better with the view that both DoLS and guardianship, as detaining frameworks in their current forms, are both very weak in relation to enabling people to access their Article 5(4) rights. In fact, so weak that they may well engage Article 14 ECHR, in being discriminatory in comparison with the relatively strong appeal rights of people detained under the MHA. However, in my view the criteria and powers of tribunals under guardianship are not as strong as the Court of Protection’s are for DoLS, because they do not have the flexibility to address the range of care planning issues that are attendant on long-term (or permanent) community detention, or the Article 8 issues around contact or disputes with family members who are not the nearest relative. However, this broader scope of the Court of Protection’s powers under the DoLS may very well be its undoing, inasmuch as it requires consideration of a broader range of issues, which is inevitably more costly and time consuming.

I now want to move onto a general discussion of DoLS v Guardianship, where I will consider some general issues that have been raised around terminology and stigma under the MHA, and the monitoring and enforcement of both regimes.

1. DoLS v Guardianship: Applications, criteria and powers

2012-01-04T08:53:00.000-08:00

Having written my thank you card to blog readers, I thought I’d kick of 2012 with a long-promised post on the deprivation of liberty safeguards (DoLS) and Guardianship. In true Small Places style, this will be not be a short one... in fact, it’s such a monster that I’ve decided to break things up into three separate posts. The first (this one) is on the criteria and powers of DoLS and guardianship; the second is on the appeal mechanism. These are very long, and if you're pressed for time I recommend you skip to the third and final post which provides a summary and a general discussion of the issues. Even so, I have a horrible feeling this might be one of those posts I spend hours on, and about 3 geeks like me actually read... Still, all fodder for the thesis, and this way I can kid myself I’m working. I'm very aware that I'm much more familiar with DoLS than I am guardianship, so please alert me to any glaring errors, and I'd also welcome any guest posts or comments on people's views on these issues.

The question: Would guardianship have been better than the DoLS?

The DoLS, as readers will know, were introduced to close the ‘Bournewood gap’ – to provide safeguards against arbitrary detention for incapacitated adults in hospitals and community settings. The DoLS are only three years old in April, but they have had a troubled early life. From their inception, observers like Roger Hargreaves wondered early on if they were a ‘bureaucratic monster’, and recently declared them ‘not fit for purpose’ in a draft report for the Mental Health Alliance. Barrister Paul Bowen (who acted in the original Bournewood case) has called them:

‘decidedly inelegant... the provisions so labyrinthine and bureaucratic that those responsible for administering them are likely to take every opportunity to avoid using them.’ (Paul Bowen, Barrister and author of Blackstone’s Guide to the Mental Health Act 2007)

And Richard Jones – author of ‘the bible’ on the Mental Capacity Act, has described them as:

‘a procedure has been created that is hugely complex, voluminous, overly bureaucratic and difficult to understand, and yet provides mentally incapacitated people with minimum safeguards’ (Richard Jones, Solicitor and author of the Mental Capacity Act Manual)

It has been suggested – by Richard Jones, by the Mental Health Lawyers Association (MHLA) – that an amended form of guardianship under the Mental Health Act 1983 would have provided a better alternative. In their response to the legal aid consultation, the MHLA wrote:

‘The DOL Safeguards are cumbersome and unpopular with nearly all those who have to deal with them. The only appeal avenue is to the Court of Protection at considerable expense. Often, the case has to be heard in London, a long way from where the person subject to the DOLS (and their family and the professionals concerned) is based. DOLS cases are mainly still heard before the senior judiciary, with the effect that counsel is often relied upon. The costs are often many times in excess of the costs of even the most complex tribunal. The Safeguards could be replaced by amendments to the Guardianship scheme under the MHA 1983, with the Tribunal service dealing with appeals rather than the Court.'

In a 2007 article for the Journal of Mental Health Law (no link sorry, paywalled), Richard Jones suggested that a person subject to guardianship powers was very likely to be deprived of their liberty:

'Put bluntly, a person under guardianship can be forced to leave his or her home to go to a place where he or she does not want to go to, can be required to stay in that place and can be returned to that place if he or she leaves without being given permission to do so. Given the interpretation that the European Court of Human Rights and the High Court have given to the meaning of a deprivation of liberty, how can it possibly be argued that a person who is subject to the operation of such powers is not being deprived of his or her liberty? Such a person is clearly subject to the continuous control of the guardian and is not free to leave the specified place of residence. The fact that the provisions of the MHA that relate to guardianship do not specifically state that guardianship can be used to authorise the deprivation of a patient's liberty is not legally relevant to the question of whether the provisions can have that effect."

I’m not sure whether, following the ruling in Cheshire, he would still hold this to be the case; Jones reasons on the basis of JE v DE, a case where there was an alternative residence – but a person could object to their confinement and attempt to escape even if there is no existing alternative. This might be particularly the case for older people whose homes have been sold to pay for care home fees. I think that’s a bit of a blind spot in the Cheshire ruling, but that’s another issue for another day.

Jones regards the guardianship regime as preferable to the MCA process for detention (ie. what became the DoLS). But it is clear from a more recent ruling of the Court of Appeal that if the effect of Guardianship is to detain a person, then as things stand it cannot be regarded as satisfying the requirements of Article 5(4). In The Secretary of State for Justice v RB & Anor [2011] Arden LJ found that a tribunal cannot order a conditional discharge for a restricted patient (s73 MHA) on terms that would create a deprivation of liberty: the review mechanism was inadequate, the criteria not set out, parliament had not intended s73 to be used for this purpose, and it forsaw detention for the purpose of ‘containment’ rather than treatment, which was contrary to the policy of the MHA [44], [54], [57]. I think similar difficulties would hold for Guardianship, since it was never intended by parliament to be a mechanism for detention, and the government explicitly rejected such a use in the Bournewood Consultation report. But, it does seem possible that in the light of widespread criticisms and the spiralling costs of the DoLS (albeit costs that the Ministry of Justice seems reluctant to keep track of), the government may return to this issue and re-consider the use of guardianship. And so, in this post, I want to explore how DoLS and guardianship compare, and in what ways guardianship (and indeed the DoLS) might need to be amended to comply with Article 5(4) and offer robust safeguards against detention. I will look to at: criteria for detention; coercive powers; the appeal and review mechanisms; the role of family, friends and advocates; terminology and stigma; and monitoring and enforcement.

Criteria for detention

In their work on mental incapacity in the 1990’s, the Law Commission notes that historically guardianship was rarely used, even though it was the only framework providing real authority for personal welfare decisions for people who lacked capacity. The already minimal use of guardianship dwindled further after it was reformed under the Mental Health Act 1983 (as amended by the Mental Health Act 2007, henceforth MHA), which reduced the eligibility criteria, and in particular excluded from scope adults with learning disabilities who are not ‘abnormally aggressive’ or ‘seriously irresponsible’. As Bartlett and Sandland put it:

‘...it means that the majority of persons with learning disabilities, for whom guardianship was designed, who are not normally aggressive nor irresponsible, are not eligible for guardianship’ (p489-90).

This problem was highlighted by several respondents to the government’s Bournewood Consultation, which canvassed views on whether guardianship could provide an appropriate solution to the ‘Bournewood gap’: The Law Society, the Healthcare Commission, Bevan Brittan (incidentally, I can’t link to these as I only have paper copies of these responses – requested from the Department of Health under the FOIA).

By contrast, the DoLS are more flexible with respect to population: it does require that a person is suffering from mental disorder in the meaning of the Mental Health Act, but takes out the restrictions on learning disabilities (last year 14% of people detained under the DoLS had learning disabilities). And furthermore, whereas the criteria for guardianship are based on a person’s ‘status’ as mentally disordered, the DoLS have the additional ‘functional’ requirement that a person must lack capacity with respect to whether he should be accommodated in a particular place for the purposes of care or treatment. A person considered to have the capacity to decide about these matters could – in theory – still be coerced under guardianship. And so, if guardianship was to replace DoLS, I think it would have to be amended not only to remove the learning disabilities exclusions, but also to include a capacity criterion so it does not become an outmoded ‘status’ based tool of coercion.

The key difference, in my view, comes down to the ‘welfare’ requirement under guardianship and the ‘best interests’ requirement under the DoLS. Aside from the mental health requirement, reception into guardianship requires that:

...it is necessary, in the interests of the welfare of the patient or for the protection of other persons, that the patient should be so received.

Meanwhile, detention under the DoLS requires that:

it is in the best interests of the relevant person to be deprived of liberty
it is necessary for them to be deprived of liberty in order to prevent harm to themselves, and
deprivation of liberty is a proportionate response to the likelihood of the relevant person suffering harm and the seriousness of that harm.

Although these criteria have broad similarities, it strikes me that the best interests requirement is potentially much more stringent than the ‘welfare’ requirement for guardianship. For a start, it explicitly requires the harm that would arise if a person wasn’t detained to be spelled out, whereas harm is only implicitly referred to under the welfare requirement. It carries an explicit requirement for ‘proportionality’, perhaps as a nod towards European Convention on Human Rights case law on Article 8. And most importantly, it engages the ‘best interests’ checklist procedure of the MCA. This requires that a range of issues - including the person's own past and present views are considered. And also that, unless there are good reasons to the contrary, a wide range of people with an interest in P’s care and wellbeing must be consulted. It is entirely possible that similar reasoning might be applied under guardianship, or that those same people would in practice be consulted during an application for guardianship (I will come on to discuss the role of the Nearest Relative, below), but it doesn’t seem to me to be a clear legal requirement. DoLS also engages emerging ‘best interests’ case law which places a high value on ‘social’ as well as ‘medical’ and safety considerations (e.g. Munby LJ ‘What good is it making someone safer if it merely makes them miserable?’ in Re MM (2007) [120]). I’m not well placed to comment as I’m not so well read in guardianship case law, but it strikes me that in the context of the MHA ‘welfare’ may place greater emphasis on medical matters – I’d be interested in your views on this. Having said that, the tribunal panel is also composed of a lay member, and so perhaps they would inject greater ‘social’ reasoning to counterbalance any tendencies to medicalisation of criteria.

The ‘no refusals’ requirement of the DoLS says that a person cannot be detained to a hospital or care home for the purpose of treatment prohibited by an advance directive or a decision of a deputy acting within their authority. This would presumably also apply to guardianship, since guardianship does not create powers to consent to medical treatment (on which more below). Under the DoLS, ‘If the donee of an LPA or deputy who has authority to determine where P will live objects to the proposed accommodation, the no refusals requirement is not met...’ (Bartlett, [4.77]; see Schedule A1 s20(1) MCA). It’s worth bearing in mind, though, that applications for deputyship can be costly, and are not very often granted, so this may not be as empowering to family members as at first appears. By contrast, guardianship ‘trumps’ the decision of a deputy:

While the reception of a patient into guardianship does not affect the continued authority of an attorney or deputy appointed under the MCA, such attorneys and deputies will not be able to take decisions about where a guardianship patient is to reside, or take any other decisions which conflict with those of the guardian. [MHA 1983 code of practice, [2.26]]

Whether or not one feels this is a good thing is probably a matter of perspective. I’ll come onto discuss more issues around potential conflicts between families and professionals under the different regimes below.

It is also worth noting in passing that guardianship can be applied to minors over the age of 16 (see s7(1) MHA 1983), whereas the DoLS have a minimum age requirement of 18. Greater flexibility over age could help remedy some of the issues that have started to emerge about older children who may be detained unlawfully in children’s homes (e.g. Re RK), residential schools (e.g. A Local Authority v C) and even care homes (e.g. MIG & MEG).

Powers

The effect of an accepted guardianship application is to:

...confer on the authority or person named in the application as guardian, to the exclusion of any other person—
(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified. (s8(1) MHA 1983)

I have to confess, I’ve never really got the point of these powers, given that the MCA provides a framework for making substitute decisions over residence (and indeed, further authority that guardianship lacks regarding payment for residential services or entry into a tenancy if need be), and attendance for various activities. Furthermore, guardianship can require attendance for medical treatment, but (unlike under the MCA) cannot offer consent to it on a person’s behalf. Bartlett and Sandland write:

‘...in practice, the paradoxical situation is that, to be effective, these ‘compulsory’ powers rely on the cooperation, or at least absence of positive resistance, of patients.’ (p489)

The language of guardianship is notably more ‘bossy’ sounding than the MCA, the patient is “required” to reside at a place, attend various activities, allow access to professionals. But the reality is that however ‘fluffy’ the language of the MCA in comparison, it still permits coercive acts. However, it does so in a much more nuanced fashion, allowing for capacity and best interests to be determined separately for each specific issue. The key difference, in my view, is that guardianship has greater safeguards than the main provisions of the MCA, which may be why it is still used by some local authorities who want to offer people who are not detained greater legal protection. Following Cheshire, that might be a very wise move.

The MHA code of practice says that in general a move to residential care can be effected using s5MCA or the DoLS, but guardianship ‘may still be appropriate’ if:

‘there are other reasons – unconnected to the move to residential care – to think that the patient might benefit from the attention and authority of a guardian;
there is a particular need to have explicit statutory authority for the patient to be returned to the place where the patient is to live should they go absent;
or it is thought to be important that decisions about where the patient is to live are placed in the hands of a single person or authority – for example, where there have been long-running or particularly difficult disputes about where the person should live’ [MHA code of practice [26.10-12]].

If there are long running disputes about where an incapacitated person should live, I would have thought the appropriate channel was an application to the Court of Protection, not the invocation of guardianship. In fact, the invocation of guardianship is a bit sneaky, as the MHA trumps the Court of Protection's powers. However, guardianship does invest the nearest relative with considerable powers, which I'll come on to.

As Jones points out in his 2007 article, there are no explicit powers for conveying under the DoLS. But the Court of Protection has now twice confirmed that a standard authorisation implicitly creates a power to coercively return a person to a care home or hospital they are detained to (Re P (Scope of Schedule A1) (2010), DCC v KH (2009)). A person under guardianship, who is absent without leave from the place they are required to live at, may be forcibly returned by a social worker (or anyone authorised in writing by them) or police officer under s18(3) MHA. This power looks a bit odd in the light of DoLS, and I think consideration would need to be given to whether coercively returning a person to a place against their objections engaged Article 5; the present state of the case law makes this rather tricky. Cases like Storck v Germany strongly suggest it would engage Article 5, as do the ‘objections’ issues discussed in P & Q (2011), but following Cheshire I am unclear whether a person would be considered detained by this if they were equally likely to be coercively returned to any place they resided at.

It’s also worth noting that under the DoLS, authority to detain can only be given to care homes or hospitals, whereas under guardianship there is no reason a person could not be required to live in a different setting – for example supported living, or even the family home. This locational flexibility places guardianship at a distinct advantage over DoLS, which have run into serious difficulties around supported living, and potentially other settings like residential schools. Nothing under guardianship prevents a person being admitted to hospital in the normal way, and it is compatible with being detained to hospital under the DoLS or s2 MHA (but not s3 MHA). If guardianship were amended to permit detention, it could presumably be used in the same way as DoLS to permit detention in hospital for treatments ineligible for the MHA.

The role of family under the different regimes

Depending on one’s perspective, one of the strengths of guardianship in relation to DoLS may be that it offers far greater power to family members. Under the DoLS the detainee is appointed a representative, and according to regulations this should be chosen by the person themselves if they have capacity, then if not by their deputy or LPA, and then – in the last resort – by the best interests assessor. As the Mental Health Alliance have noted, the possibility for the supervisory body to select a representative who does not oppose the detention is rife with potential for conflicts of interest. There is very little monitoring or accessible means of challenge to ensure that P is allowed to choose their representative when capable, and there is very little to stop the best interests assessor choosing a more compliant representative than a more appropriate or obvious candidate. This compares poorly with the selection of the comparable person – the ‘nearest relative’ – under the MHA. The nearest relative is automatically selected from a list (s26 MHA), and the approved mental health professional (AMHP, roughly analogous with the ‘best interests assessor’ under the DoLS) can displace them by application to court. Presumably this is a guard against conflicts of interest in their appointment, and I am intrigued that the drafters of the DoLS did not consider this issue. However, one shortcoming of the MHA regime, of course, is that if the person themselves has capacity, they might end up in a situation which, to quote David Hewitt, their nearest isn’t their dearest. In such circumstances, it would be incumbent upon them (or the AMHP) to apply to the court to have them displaced, which rather raises the inverse problem that if their nearest relative supports the detention then they may find it hard to recruit support to exercise this right. One option might be to allow a person with capacity to select their nearest relative/representative, and then if they lack capacity to refer to a decision by a deputy, or finally list system if they have none.

In comparison with the representative under the DoLS, the nearest relative has considerable powers. The nearest relative can oppose an application for reception into guardianship, and they also have powers to discharge a person from guardianship simply by writing to the local authority. However, the AMHP can – as stated – apply to have the nearest relative removed from that position by the court, if they feel they are likely to inappropriately exercise these rights. In their response to the Bournewood Consultation, the Law Society noted that sometimes the threat of displacement may discourage a nearest relative from ‘acting vigorously on behalf of their family member’. One solution to this issue may be to support the nearest relative with independent advocacy, and ensure they have access to good quality information about their rights. I had difficulty finding equivalent guidance for nearest relatives as the Department of Health supplies for representatives for the DoLS, but perhaps there is some out there (certainly I don't think they should have to cough up for a handbook; perhaps the detaining authorities could buy copies for them?!).

In contrast, the representative under the DoLS has no right to oppose the detention (unless they are also the donee of an LPA, or their deputy), nor of discharge; their only right is to request review (which can be refused) or to appeal to the Court of Protection under s21A MCA. The weakness of this position will be discussed more in Part 2, but for now it’s worth noting that the balance of power between family representative and professionals is entirely shifted with a switch from DoLS to guardianship. Whereas in the DoLS the representative has to make the case that a person should not be detained, and in any case it is relatively easy to avoid giving significant powers to any oppositional family member, under guardianship, where the nearest relative opposes the detention, the shoe is on the other foot. To put this in perspective, had Steven Neary been detained under a guardianship-like regime, his father could have opposed his placement in the care home from the start, or discharged him by merely writing a letter to Hillingdon Council. Had the council wanted to oppose this, it would require them to refer the case to court to displace his father as the nearest relative, and as history tells us, it is unlikely they would have succeeded.

The roles of different professionals under the different regimes

Under the MHA, an application for reception into guardianship must be approved by two medical professionals. Usually the application is made by an AMHP working for a local authority social services team, which means that a professional who is likely to have a social care background is involved in the process. Although AMHP’s are making the application on behalf of the local authority, the code of practice is careful to stress that ‘the decision to make an application lies with the AMHP personally’ [8.14]. They are expected to be independent, and as the instigator of the application arguably have more power than the medical professionals – who merely exercise a right of veto. However, in the responses to the Bournewood Consultation, law firm Bevan Brittan argued that it might be better if one of the professionals who must approve applications for reception into guardianship had a social care background. I would probably support this view, as I think that the expertise of social care professionals is very relevant to community based forms of detention.

Under the DoLS, an assessment must be made by both a doctor (the mental health assessor) and a best interests assessor. The requirements for the best interests assessor are somewhat vague; they must not be related to P, must be independent from his care planning, and must have no conflict of interest. The code of practice says the supervisory body ‘must be satisfied in each case that the assessors have the skills, experience, qualifications and training required by regulations to perform the function effectively’ [4.15]. Although best interests assessors often are social workers and AMHP’s, there is no legal requirement for them to be. This means that the degree of experience and training in legal frameworks for detention is potentially much lower among best interests assessors than AMHPs involved in guardianship. Given the requirement that the best interests assessor also explores the complex issue of the MHA/MCA interface in the eligibility assessment, a background as an AMHP could be very useful. If I were reforming DoLS, I would almost certainly make it a requirement that best interests assessors were AMHP’s, and if I were in charge of AMHP’s training I would probably make it a requirement that they learn about DoLS so there is a more standardised level of expertise than ‘appropriate training’ among assessors.

I now want to go on and discuss appeal and review mechanisms under each regime in Part 2.

Happy new year, and thank you

2012-01-03T06:18:00.000-08:00

The Small Places blog is a year old this month, and a year ago if anyone had told me that the number of readers would exceed double digits I would have been very surprised. I only started the blog because my friends’ and family’s eyes started to glaze over every time I mentioned the deprivation of liberty safeguards, but I needed an outlet for all the things I’d found out, or that annoyed me. I’m still a little astonished (and delighted) that anyone else shares my interest in this obscure area of law... In this the final year of my PhD, I’m not sure I’ll be able to write with the same frequency as I did in 2011, but I’ll try to post what I can.

One of the things I’ve noticed as a blogger is that the harder I find a post to write, the more it requires me to delve into the textbooks, case law, rules and regulations, the more dispassionate and considered it is... the fewer people read it. In short, the bits that fit the traditional ‘academic’ mould are the least popular, whilst posts I’ve written in the heat of the moment (a rant onthe decision in McDonald v Kensington and Chelsea, on Winterbourne View) are really popular. As are the posts where I’ve been digging around with the Freedom of Information Act (on the malfunctioning of the deprivation of libertysafeguards appeal mechanism, on the lack of transparency in personalbudgets), which will – hopefully – make it into an academic publication of some form eventually.

Regular readers will notice that this blog usually violates one of the fundamental rules of blogging: keep it short. And whilst my lengthier posts may repel some readers, on the whole there doesn’t seem to be any relationship between length and popularity over here at the Small Places. So it shouldn't be a problem that my next post - comparing the DoLS and guardianship - is turning into a monster...

As I said, I only started the blog so I could find more willing audiences to bore than my friends and family. But the rewards of blogging have been far greater than I could have hoped. Initially I used to check the hit counter to see if anyone was out there, but I rarely bother now. The biggest reward, for me, has been the responses I’ve had from readers. Through comments published here on the blog, through conversations on Twitter (@thesmallplaces), through emails, phone calls, even ‘real life’ encounters sometimes, I’ve learned more than I could ever have hoped from you. I am really delighted when Jonathan corrects my terminology, when Carl challenges my (perhaps excessive) faith in human rights frameworks to remedy all ills, when the fantastic staff at CQC help improve my accuracy and understanding with corrections, comments and conversations. I’ve been chuffed to bits to be invited to write for publications that I love to read: the UK Human Rights Blog, Anna Raccoon, Community Care, Local Government Lawyer, the 39 Essex St Court of Protection Newsletter and the Guardian. I won’t embarrass anyone by mentioning their name, but I’m indebted to a lot of people for helping me think more deeply about the topics I post on here.

All of which suggests to me that you are impassioned people, not put off by lengthy posts and the odd legal tangle, but who don’t enjoy academic legal pernicketyness for its own sake. Those of you I have met are passionate about how we can safeguard the rights of court users in an age of austerity, reduce collateral damage from poorly developed policy and legal frameworks, manage the difficult balance between transparency and privacy, and frustrated by the lack of political will to address serious problems in social care. Perhaps like me you are also kept awake at night by the complex moral, political and practical issues raised by Article 12 CRPD, or cases like W v M. And perhaps you’ve also been cheered by some of the same highs as me this year – powerful rulings like Neary v Hillingdon, A London Local Authority v JH& Anor. This year, I look forward to being able to write about the forthcoming ruling in Stanev v Bulgaria from the European Court of Human Rights, more on issues around Article 12 CRPD and the Mental Capacity Act, more about how regulation and advocacy can promote human rights outside formal legal channels, and perhaps - just perhaps - there are the beginnings of signs that the government may consider some of the problems with the deprivation of liberty safeguards. Thank you very much for reading, and happy new year.

Holiday reading

2011-12-16T10:25:00.000-08:00

I'm drowning under a mountain of introductory chapter drafts, but if you're looking for a good read you couldn't go far wrong with the latest issue of the European Human Rights Law Review. I do hate recommending paywalled journal articles on this blog, as the frustrations of not being able to read academic papers when I was working in care aren't long behind me, but if you can get your mits on Issue 6 of 2011 there's a lot of interesting reading from a legal capacity and disability rights perspective:

In his introduction to the issue ('Disability rights: from charity to equality') Thomas Hammarberg, Commissioner for Human Rights at the Council of Europe, writes that progress on human rights of people with disabilities has been slow. I agree! He talks about the 'radical' achievement of the Convention on the Rights of Persons with Disabilities CRPD, and the importance of policies to ensure that rights to employment, education, access to services and voting rights are all supported.
Constantin Cojocariu wrote the submission for Interights and the ECtHR case Stanev v Bulgaria, a case that may yet prove to be vitally important on a range of issues including legal capacity, the meaning of 'detention' in social care institutions, and positive obligations to provide community based alternatives to detention. The case was hear by the Grand Chamber of the ECtHR in February and judgment is still, tantalisingly, awaited. It has the potential to reinvigorate the entire debate over the meaning of deprivation of liberty, and potentially ignite concerns around litigation capacity arrangements in the UK. But I digress... Cojacariu's piece concerns whether the 'admissibility rules related to standing and victim status can in certain circumstances exclude persons with disabilities held in mental health institutions from the protection of the European Convention on Human Rights by denying them access to proceedings before the European Court of Human Rights'. He argues that other organisations and individuals should be permitted to sue on behalf of disabled persons.
Oliver Lewis is the legal director of the Mental Disability Advocacy Centre (who, incidentally, were involved in the case Stanev v Bulgaria alongside Interrights) and author and editor of several books on my bookshelves! He gives a review of European jurisprudence on 'legal capacity' and highlights a role for strategic litigation. Lewis is critical of plenary Guardianship, which no longer operates in England and Wales, but lest we feel smug he is also critical of the functional approach to capacity that underpins the Mental Capacity Act. Lewis' arguments are part of a family of critical approaches to substitute decision making mechanisms that surround Article 12 CRPD; I have discussed these previously, and continue to read and consider this topic with great interest.
Phil Fennell and Urfan Khaliq from Cardiff Law School discuss emerging tensions between Articles 12 and 14 CRPD and the European Convention on Human Rights. As Peter Bartlett and others have pointed out, it does seem very hard to reconcile Article 14 CRPD, which states that people with disabilities must only be deprived of their liberty on a basis equal to others, with Article 5(1)(e), which permits detention on grounds of 'unsound mind'. Domestically we've seen a lot of discussion of 'Fusion Law' (there's a great free summary in this edition of the Mind e-Newsletter), but Fusion Law would still presumably permit coercive treatment and confinement on grounds of incapacity - an approach which increasingly may come be seen as invalid under the interpretations of Article 12 CRPD discussed in this piece.
And Luke Clements, also from Cardiff Law School, writes a flaming criticism of the courts' failure to protect the dignity of disabled people, in stark contrast with their rhetoric. The article makes frequent reference to the Supreme Court ruling in McDonald v Kensington and Chelsea (which I discussed here), but also has a lot of interesting thoughts to offer on Article 5 jurisprudence. Clements also writes an opinion piece introducing this special issue.

I can't recommend this journal issue enough for anyone interested in disability and human rights, and a sense of where future (and, indeed, current) debates around mental capacity and human rights may lie. I'm glad to see more domestic lawyers taking an interest in the CRPD. It's depressing to see that whereas legal textbooks and policy papers make frequent reference to 'safe' instruments like the Hague Convention on the International Protection of Adults, there is a real reluctance to engage with the challenges of the CRPD. The CRPD may well pose a challenge to many UK practices in relation to mental incapacity, mental health and independent living, and yet there are very few visible signs of awareness of these debates among mainstream academics, legal practitioners or civil servants. Indeed, the Law Commission was pretty dismissive of the right to independent living contained in the CRPD in their adult social care statute report, and there are few signs that the Office of Disability Issues are aware that there may be tensions between the MCA and Article 12 in their report on the CRPD. I think it's time we started to get a grip, and this edition of the EHRLR is a great place to start.

I probably won't be blogging now until the new year. On the backburner at the moment is a piece comparing the relative benefits of DoLS and Guardianship as a safeguard for liberty, and I have a lovely 14 page table to share! If there's anything you think I should consider, or you have any comments you'd like me to include, just drop me a line. Seasons greetings, enjoy your holidays.

Monitoring detention under the MHA and the MCA

2011-12-08T04:00:00.000-08:00

Today the CQC published their latest annual report on the Mental Health Act (MHA). As with their last report, it gives a detailed whole-system analysis of the functioning of the MHA, with particular attention to the experiences of detained patients, and how effectively their rights are being protected. In my (admittedly quite idiosyncratic) view, the CQC’s monitoring of the MHA is one of its greatest strengths. It is no exaggeration to say that its work in the field of detention monitoring for mental health is world leading, and reflects the considerable experience, knowledge and independence of the MHA commissioners at the CQC. I wanted to use this post to explore what exactly makes the CQC so strong in this field, and what we could usefully learn from this to apply to how the deprivation of liberty safeguards (DoLS) under the Mental Capacity Act 2005 (MCA) are monitored. One thing that will, I hope, become clear in this piece is that the CQC face a considerably greater challenge in monitoring the DoLS than the MHA. A lot of the infrastructure that CQC rely upon in their monitoring role simply isn’t there (yet) for DoLS to enable a whole-system analysis. To put this in perspective, the MHA is in its third decade, the DoLS are tottering into their third year, and so things may well change in the future.

Differences in remit and workforce infrastructure

The first key difference between monitoring the MHA and the DoLS is workforce related. The statutory duty to ‘ keep under review’ the powers conferred by the MHA was transferred to the CQC from the old Mental Health Act Commission (MHAC), whose staff continue to remain a relatively distinct unit within the CQC and are often still referred to as “Mental Health Act Commissioners”. The Commissioners’ remit is to visit places of psychiatric detention:

‘The visits are not assessments of the overall standards of care and treatment in the hospital (that work is carried out by our compliance inspection teams), but tell the story of the overall impact on the patient’s experience of detention and the level of compliance with the Act and the accompanying Code of Practice.’ p6

This is very different to the remit of CQC’s compliance inspectors who visit care homes, hospitals and other sites for regulatory purposes. The CQC is also required by regulations to monitor and report on the operation of the DoLS. But whereas the MHA Commissioners undertake visits for the sole purpose of monitoring the MHA, no equivalent visiting function exists in respect of DoLS. DoLS is, presumably, to be monitored through the CQC’s ordinary compliance inspection framework. The difficulty here is that compliance inspectors inspect against a much larger range of outcomes, some of which are tangentially related to the MCA/DoLS, but their knowledge base is necessarily broad and may not be that deep. Meanwhile, the Commissioners are specifically expert on the MHA itself; their knowledge of the MHA and their sensitivity to issues around human rights is considerable. I suspect most compliance inspectors would have had little more than a day or so of training on DoLS, and I very much doubt they keep up to date on case law. Indeed, even if they did, I doubt they’d be much better at deciphering it than the rest of us, which is the difficulty with monitoring a badly drafted framework that is very much in its infancy. A central difference, then, for the monitoring of DoLS is that there is no comparable visiting scheme, and no comparable expertise base - particularly for people detained in care homes.

For people who are detained outside the scope of the DoLS, in setting likes supported living, there is not even a visitation or site inspection scheme in place. This is almost certainly in contravention of the UK’s obligations under the Optional Protocol on the Convention Against Torture (OPCAT), but it’s very difficult to see what CQC can do about this. The reason they cannot inspect supported living services is because they have no right to inspect a person’s own home (supported living service users typically have tenancies). I do wonder if they could look to set up some kind of consensual visitation with detainees though, perhaps also liaising with advocates or relatives to support interviews. The difficulty here would be firstly resources; and secondly the CQC would have to be notified of these detentions that take place outside the DoLS (itself, I think, a good idea as we have no current system of keeping track of these). There may be data protection difficulties, however, in passing on detainee’s contact details to the CQC to arrange visits.

In hospital settings the MHAC have been raising issues around de facto detention of voluntary patients for years; in fact they even intervened in the Bournewood case, and were one of the few public authorities at the time to recognise the need for additional safeguards for incapacitated patients. Initially it looked as if, for hospital patients at least, people detained under the DoLS might fall within the Commissioners’ visiting remit. In 2009 the CQC issued some guidance on how they would monitor the DoLS (I can’t link to it because it’s not on their new website, sorry), in which they said they would ‘Identify people who have been subject to deprivation of liberty applications during Mental Health Act visiting activity in hospitals and explore the experience of some of those individuals’. I am not at all clear if the Commissioners are actively doing this in hospitals at the moment; surprisingly there is not a single mention of the DoLS in this report. In fact I think it might be the first report on the MHA since at least 2003 to make no mention of de facto or ‘Bournewood’ type cases. I was somewhat disappointed by this, and I do hope they contribute their knowledge of hospital patient experiences and the MHA/DoLS interface to the next annual report on DoLS.

The voice of detainees

One of the greatest strengths of the MHAC and their current incarnation in CQC is the amount of energy they devote to obtaining the experiences of detainees. This isn’t a tokenistic quote or two, or some photos of service users for padding; it’s absolutely fundamental to what they do and perceivable in all aspects of the report. The tone is set right at the start with ‘Margaret’s Story’, which offers the wise remark ‘What could be better for my mental health than having my opinions listened to and respected?’ The report covers several areas and offers an insight into patients’ views and experiences of:

Issues around staffing levels and continuity of care in hospital staff
Lack of meaningful or engaging activities on hospital wards
Overcrowding on wards
Excessive interferences with privacy and liberty

The CQC also take great pains to ensure the voices of detainees are heard by the hospital, and encourage their views and experiences to be embedded into infrastructure and practice. For instance they advocate:

Giving patients greater involvement in their care planning and reviews, rather than inviting them in to ‘ask questions’ afterwards as one hospital was found to be doing;
Ensuring “Easy Read” care planning documents don’t diverge from the documents used by staff, and that the documents used by staff contain input from patients about their views and aspirations, not just ‘medical’ information;
Seeking the views of patients following episodes of restraint to see what can be done to ensure such incidents don’t recur;
Ensuring capacity to consent to treatment is properly assessed, and ensuring patients have the chance to ask questions or express concerns in private about their medication;
Ensuring patients are involved in choosing available activities;
Involving patients in the running of the wards and giving patients roles in the ward, for instance one patient commented positively about being able to show around new staff as part of their induction.

Part of the reason the CQC are able to report so authoritatively on the MHA, and part of the source of widespread admiration for its work, is that it treats the experiences and views of patients so respectfully. On each visit the Commissioners aim to interview patients in private, enabling their voice to be heard. The interview method at the heart of the visitation scheme provides a conduit for conveying experiences and views from the locked ward straight to those with power, through a report that is widely read by politicians and policy figures and (one hopes) the very mental health professionals that treat them.

In comparison, it is hard to see how this could be achieved for the DoLS, at least in the short term. The CQC did in its 2009 guidance express a desire to seek the experiences of DoLS detainees, but there was really no sign of this in their first monitoring report. Given the strains on compliance inspectors’ time, and the lack of a specific DoLS monitoring infrastructure to collate information, I’m not sure that seeking the experiences of DoLS detainees is feasible in the systematic way it is for the MHA. I did a quick audit of compliance inspection reports for 40 residential services for adults with learning disabilities; unfortunately 45% of services had no report on the new CQC website, but of those that were 37% of my sample indicated inspectors did not interview service users – although in 25% of cases they did speak to relatives or advocates.

It is my understanding that CQC are going to introduce a system whereby inspectors must consider whether to look at DoLS for each compliance inspection they conduct, and so that may improve attention to this area. I think this is much needed. I conducted an audit of dementia care home inspection reports in an area which I know has very high levels of DoLS activity; I found very few mentions of DoLS indeed. Those that did referred mostly to staff having completed training; in comparison with CQC’s detailed analysis of the application of the MHA, asking about training is a very poor substitute for proper monitoring of the DoLS. Given the mammoth task of adjusting to a new regulatory framework and developing expertise on all the essential outcomes, it may take time for CQC inspectors to become accustomed to considering the relevant aspects of DoLS and it may sometimes be challenging for them to find the time to seek out detainees’ experiences.

Essential safeguards: Advocacy

One of the areas the CQC looked at in this report, as in previous reports, was statutory advocacy – specifically the Independent Mental Health Advocates (IMHA’s). CQC recognises the central importance of advocacy in ensuring people understand their rights and are able to access them. Their report echoed the concerns of the Mental Health Alliance that access to the safeguard of advocacy is variable, and there are commissioning problems. They carried out a series of targeted checks and found that detained patients had regular access to IMHA’s on only 65% of wards; and that IMHA’s would come when requested on only 85% of wards. They noted that people on CTO’s often had worse access to advocates. From the perspective of DoLS this is interesting, because most DoLS cases are spread throughout the community, and also often across hospital wards that may not typically be used for psychiatric detention. It may suggest that it is harder to guarantee advocacy services for a geographically dispersed population.

Access to an Independent mental Capacity Advocate (IMCA) is a vital safeguard under the DoLS. In their last DoLS report CQC made no mention of advocacy referrals at all; I do hope they address this issue in their next report. The Mental Health Alliance have twice raised concerns that people are not being supported by Independent Mental Capacity Advocates (IMCA’s) under the DoLS, and in the case Neary v Hillingdon the judge ruled that failure to pro-actively refer Steven Neary and his father to an IMCA for support had contributed towards a breach of Article 5(4). It is arguable that IMCA’s constitute an even more vital safeguards under the DoLS than IMHA’s role under the MHA, since their role may be essential to accessing the appeal mechanism. Whereas a patient detained under the MHA will be referred to a tribunal automatically in the end, the DoLS require somebody to actively apply to the Court of Protection to mount an appeal. Anecdotally (because there is no hard evidence on this), many people struggle to access this right because they simply do not understand how and when to do it. As in the Neary case, an IMCA may be central to supporting a person’s representative to appeal, or as in a recent case an IMCA may be relied upon to mount an appeal on P’s behalf.

In my view, any serious whole-system analysis of detention under the MCA must learn from the way the MHA is monitored and explore advocacy. Yet here the CQC hit a difficulty with DoLS monitoring that just does not exist for the MHA; they are no longer allowed to assess the performance of local authorities – who are the supervisory body in the majority of cases, and will soon be in all. In the DoLS the majority of the safeguards are under the control of the supervisory body, not the managing authority, and yet the CQC has no obvious means to assess their performance any more. This is a Department of Health decision, not CQC, and in my view it is devastating to the success of DoLS monitoring. Without access to the supervisory bodies themselves, how can we know whether the safeguards – which mostly lie in their hands - are being applied appropriately?

The CQC could, however, make a start by requesting that the Department of Health share their data on IMCA referrals under the DoLS for each local authority. I have been trying to get hold of this data for the best part of this year, and have met with incredible resistance from the Department of Health and the NHS Information Centre. However, you could match it up with the DoLS authorisations data for each supervisory body, and consider whether they were making referrals at the levels you would anticipate, flagging up potential risk areas. When I wrote to each local authority in England before Christmas 2010 I found that one-third had never made a referral under s39D – this kind of referral failure occurred in Neary, and was found to be a breach of Article 5(4).

Essential safeguards: Tribunals

The CQC also includes a section in their report on Tribunals. The tribunal is the Article 5(4) mechanism that ensures a speedy review of the lawfulness of detention of psychiatric patients under the MHA. Patients successfully appealed to the tribunal in 12% of cases, and were discharged. A looming Tribunal hearing on the horizon also seems to have a ‘focussing’ effect on patient discharge; around a third of patients were discharged by their doctors after they had applied for a Tribunal hearing. Earlier in the year the CQC also produced a report with the Administrative Justice and Tribunals Council on patients’ experiences of tribunals, which is well worth a read.

Here again we see the CQC are able to combine high level information with first-hand experiences in their reporting on the MHA. Sadly, no comparable data exists for DoLS. The CQC bemoan the lack of demographic data collected by the Tribunal Service; I echo that concern, but the picture for DoLS is far worse. We don’t even know how many people have been discharged in a s21A appeal! For all we - the public - know, Steven Neary might be the only person ever to have been discharged from detention by the Court of Protection. This poses a real problem for a whole-system analysis of the ways the DoLS are working, and again this isn’t so much the fault of the CQC but a lack of wider infrastructure to support their monitoring role. As a general rule, I would say there seems to be a bit of a dearth of data collected by the Ministry of Justice for civil court hearings; the CQC could usefully put pressure on them to collect demographic and outcome data on DoLS. It would also be useful and informative if we were able to capture the voices and experiences of Court of Protection users in DoLS appeals, and perhaps CQC could approach the Court of Protection to work out some way of doing this – as they clearly have done with the Tribunal service.

Reporting on other issues

The CQC also report on other issues commonly experienced by psychiatric detainees, for instance concerns about over-occupancy on wards, excessive interferences with liberty, risk assessments and safety concerns, a lack of meaningful activity on the wards, concerns over consent to treatment. These paint a very powerful picture of ward life as experienced by some patients. An equivalent picture for people detained under DoLS would be harder to come by, given the diversity of settings they are detained to. Such a picture must come from the CQC’s ordinary regulatory functions, I suspect, and they’ve made a start with themed reports like Dignity and Nutrition. I think it would be timely for the CQC to consider a themed report on issues around capacity and consent, given it is now almost five years since the MCA came into force.

Perhaps my ‘legal’ focus is coming through too strongly here, but I did think it was a shame that the CQC didn’t offer any discussion of case law relating to the MHA, as the MHAC used to in the biennial reports. Cases like Rabone v Pennine Care NHS Trust, for instance, which concerned a hospital’s duties towards voluntary patients under Article 2. Or cases like CX v A Local Authority & Anor, where the court granted a writ of habeas corpus to a detained patient whose nearest relative had withdrawn an objection to the detention on the basis of misleading advice by an AMHP. In the case of the DoLS, I understand that the CQC has called upon the Department of Health to provide better information about case law. But it strikes me that really the annual monitoring report would be an ideal vehicle to disseminate that information. Any report on DoLS that failed to mention the effects of key rulings like P & Q, GJ v The Foundation Trust, Neary v Hillingdon or Cheshire West and Chester Council v P would, I think, fail to take account of the way case law is so central to shaping the operation of DoLS as a whole. I also think C v A Local Authority [2011] is set to be a very important case about the limits of the use of restraint and seclusion in social care, and would like to see it better publicised to providers and social care professionals. Probably this is also a bit pernickety given they’re such a small population, but I would have liked to have seen a bit more about experiences of Guardianship under the MHA. My interest is because Guardianship is often touted as a good alternative to the DoLS, and yet we know very little about how effectively it operates or people's experiences of being subject to it.

What can we learn from the CQC’s MHA monitoring role?

The CQC’s report on the MHA succeeds in giving us a detailed picture of how the Act is functioning. For the reasons I’ve outlined, it is less likely they will be able to produce such a detailed report on the functioning of the DoLS. It is much harder to get at the experiences of detainees in this group, because of the diversity of services they are detained to and the lack of a comparable visitation scheme. And CQC’s monitoring role is unhelped by the paucity of data collected on vital safeguards like IMCA referrals and the appeal mechanism. However, they could profitably direct pressure towards the Department of Health and the Ministry of Justice to assist them in this role, just as they directed gentle pressure towards the Tribunal service to collect demographic data on MHA appeals. Overall at present DoLS remains very much the poor relation of the MHA in terms of both effective safeguards on liberty, and monitoring arrangements.

I wanted to finish off with a few general comments about the ongoing role of the MHA Commissioners at CQC. Despite hearing various critical remarks about CQC’s regulatory role regarding compliance, I can’t remember ever hearing any criticisms of the MHA Commissioners from anyone. They are extraordinarily well respected for their knowledge, experience and integrity. This is not because the MHAC visitation regime is perfect; there is always room for improvement. Neither is it failsafe; Winterbourne View was visited and even complimented by the Commissioners, but it was the compliance inspectors that came in for criticism not the visitation scheme. (As an aside, it’s somewhat surprising the well publicised issues with these services weren’t mentioned in the report, but perhaps they are awaiting the results of the Serious Case Review in the new year). It may be that the public are simply poorly informed about the MHA monitoring role, or it could be that the MHA Commissioners have effected more realistic public expectations about what they can achieve and what their role is.

I suspect part of the reason they are well respected is because of their willingness to highlight problems within the mental health system, to look behind the slick assurances of managers and listen to the service users. The Commissioners have a long tradition of really quite forthright in their criticism of government policies in mental health. There were definitely signs in the report that this “critical friend” tradition continues to live on at CQC; there were some not especially complimentary comments about the Department of Health’s policy on night time confinement, for instance. The CQC reports on the MHA also give practical and workable examples of good practice, and contain valuable detailed information on the state of the sector. It strikes me that there is a real appetite for this kind of reporting in care at present. Not assurances that everything is fine, nor even a crackdown on poor services without concomitant attention to national policy issues that are at the root of many problems. People want constructive criticisms levied at all aspects of the system. It is only through such detailed monitoring and reporting will we be able to facilitate the conversations that are needed to make improvements

Has the CQC over-promised?

2011-11-29T06:03:00.003-08:00

Just a quick post... I've been musing on the late evidence submitted to the Mid Staffordshire Inquiry by CQC whistleblowers Amanda Pollard (a compliance inspector) and Kay Sheldon (a member of CQC's board). I think Pollard and Sheldon both have to be commended for their bravery; it is not easy speaking out about an organisation you are still involved in.

As with the evidence of Dr Heather Wood, a former CQC employee who has since left the organisation, there is a great deal to consider in this evidence. I just wanted to pick up on one issue, which is CQC's promise to inspect all care homes annually. I've written previously that I was doubtful whether CQC could hit this target on current resources. Amanda Pollard is a CQC compliance inspector; it is she and her colleagues who will be expected to deliver on this promise, and in her evidence to the Inquiry she stated:

The consequence of this commitement and the change to the way inspections are now being carried out cannot be underestimated. One consequence is that inspectors were told to conduct desktop reviews, rather than visit their providers. My view is that a desktop review is generally ineffective. By way of an example, I currently have a provider where there are a few service isseus. I have been comforted by the fact that the provider is on the local County Council's radar, from their Safeguarding perspective, and therefore they do not require an urgent re-inspection. However, I had planned to go back in to conduct a follow up inspection, but was told by my manager that I could simnply ask for evidnece and review that evidence to see if their responses were acceptable and write a report based on that.

Playing pass the parcel with the local authority safeguarding team... haven't we been here before? Would it be sensible, I wonder, if a CQC inspector had clocked the problems at Winterbourne View to make a compliance declaration on the back of a desktop review? On the basis of paperwork supplied by the managers?

What we seem to be seeing is inspectors being squeezed to deliver targets without a concomitant increase in resources to help them do so. I've been doing a bit of maths with some data the CQC gave to me under the FOIA. As I wrote before, the cost per inspection has shot up in the last year - perhaps because of the problems alluded to by Pollard of inspecting against so many outcomes. But let's estimate that the average cost of a key inspection is £3.73k, as it was in 2009/10 according to a calculation I did that CQC checked for me. If CQC has to inspect the 18,063 care homes and 5769 domiciliary care services it has registered in 2010/11, then the total inspection cost would be roughly £88.9m. Well, last year the CQC's total expenditure on social care regulation was £59m, and their total expenditure on inspection was £38m. So this seems to me to leave a shortfall of potentially 130% in their inspection budget, or 50% of their total regulatory budget. Given that CQC have only asked for an additional 10% from the Department of Health, I really do wonder if - as Pollard suggests - they have rather overpromised on this target.

To conceive this numerically, let's imagine that CQC get the 10% resource increase they've asked for, and channel this all into adult social care inspection and not other areas in CQC's remit. So that's 10% of their TOTAL annual budget, which last year was £132.5m, which is £13,252.5k. Add that to what they spent on inspection last year, £38,432, and that's a total of £51,685k for inspections. They have to inspect 23,832 services (combining care homes and domiciliary care agencies), so that's an average of £2.17k per inspection. That's less than a quarter of what was spent per inspection last year - which is admittedly quite an inflated score. Or it's around 58% of what was spent per inspection in 2009/10. The only way to achieve this target, it seems to me, is to compromise on the quality of the inspection process itself and - as Pollard suggests - to avoid getting entangled in time consuming follow up work where there are problems. CQC have said they will no longer be inspecting against all 16 core outcomes every year; I will await with interest guidance for inspectors in helping them decide which outcomes to inspect against or not.

UPDATE: Department of Health grants CQC extra cash, but...
In June Community Care reported that the CQC had sought £15m extra funding from the government to support it in its extra inspections. Last week they reported that the government had granted them the cash, but it looks as if this will only amount to £10m, not the £15m they requested (and less than the 10% I calculated with above). CQC appear to be operating in a very unsympathetic political climate. It seems to me that it suits the government quite well for CQC to take the flack for problems in the inspection regime, but they have only partially fulfilled CQC's requests for further funds.

DoLS: Back to the drawing board?

2011-11-25T05:45:00.000-08:00

Is it time to go back to the drawing board with DoLS? This week the Mental Health Alliance (MHA) published a draft report on the DoLS (pdf) in which they declared 'The DoLS scheme is not fit for purpose in its present form'. The report release coincided with an excellent program by BBC Radio 4 on the DoLS, The Report, which interviewed several key players in the DoLS - including Charles J, the Official Solicitor and Roger Hargreaves who authored the MHA report. Taken together with conflicting reactions to the Cheshire ruling, there seems to be real confusion about what the DoLS are for, and how they should be applied. I sense a real appetite for reform, but less consensus of what those reforms should consist in.

I think part of the difficulty is that there are multiple issues around human rights in social care, and the DoLS contain various ingredients that may be useful remedies. The situation reminds me of Maslow's Law of the Instrument: "It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." One of the difficulties that has come up repeatedly under the DoLS, is of course conflict over the meaning of 'deprivation of liberty'. As Charles J said when interviewed for The Report 'What is deprivation of liberty? ...you ask three people you’ll probably get four answers.' And those four answers are likely to correspond to the issues those particular people are concerned about. A comment by Carl Gardner in response to this post really made me consider: although these are 'human rights issues', is it actually helpful to hitch them to a human rights instrument? This might sound strange, but I've posted Carl's comments as a guest blog as they contained much food for thought. The debate about whether the DoLS should be linked to Article 5 is also raised by Roger Hargreaves in the MHA report when he says:

The term “deprivation of liberty” gives a negative impression which is creating resistance on the part of service providers. Whilst it is recognised that this term has for legal reasons to be used in the statute and guidance, the government should consider, at the first major review, whether an alternative title could be adopted for the scheme as a whole which would present it in a more positive light. The original intention was to title it “Protective Care” which had much more positive connotations

Now, I don't think the MHA is recommending that the DoLS should be decoupled from Article 5 except in name, but I wonder if we actually should consider this. The problem with hitching them to Article 5 is it leaves the degree of protection available highly vulnerable to the gusty winds of change in human rights jurisprudence. Neither in Strasbourg nor domestically has the Article 5 jurisprudence been especially consistent or clear. Potentially the next kettling or control order case could leave thousands of disabled people without safeguards for the restrictions they are subject to. I personally tend towards the view that restrictive practices in care like those P are subject to do amount to detention, but I think we have to be honest and say that this is really a very subjective and almost aesthetic judgement. And it's certainly a view that is very distasteful to many, to say that society's responses to a person's disabilities may mean that he will be detained wherever he is. And I think the debates around this point are becoming a bit "how many angels can dance on a pinhead". It's a distraction, when nobody is really of the view that P shouldn't be entitled to any protection to ensure that restrictions are appropriate and kept to a minimum. So instead of arguing about whether he is detained or not, perhaps what we should look at are other ways of protecting his rights that are less clunky and controversial than DoLS.

Some issues - issues like those that came up in Neary - will certainly need access to judicial consideration, but one of the issues that was raised in The Report was whether that consideration needs to come from the Court of Protection, or could it come from a Tribunal process. I have a bit of habit of pouncing on lawyers with this question when I meet them, and I get very mixed responses indeed. Some, like Ben Conroy when he was interviewed in The Report, prefer the Tribunal system as it is "fast and accessible" whereas "DoLS is extremely slow, very expensive and very time consuming." Others raise issues about representation - why do most DoLS cases require the involvement of the Official Solicitor and barristers, when few mental health tribunals do? Some are concerned that P, the person at the heart of the case, is unable to attend the Court of Protection because of distances, and perhaps because hearings tend to be much longer than tribunals. But to counter that, as the Official Solicitor said in The Report 'There is a tension between the necessary protection and speed.' It seems to me that the issues coming up in these contentious cases may be far more complex - or at least sprawling - than the issues a mental health tribunal address; they are in some respects more comparable to family law cases around child protection. When I've asked judges this question, they've pointed out just how complex the issues of mental capacity, best interests and deprivation of liberty are to settle - but then, I suppose they have tended to hear only the most complex cases so that may not be a fair view. Furthermore, tribunals' powers are really much more restricted than the Court of Protection, and I think it's worth considering whether if we expanded the issues and powers to those under the Mental Capacity Act the cases might end up just as lengthy as under the DoLS. My point is - I think the delays may be a function of the Mental Capacity Act itself, and not the venue. I think there is a real need for some detailed comparative research to compare the processes and issues that are involved in mental health tribunals and the DoLS to see if the procedures can be trimmed down in any way, and what kinds of issues are holding up the process.

I hope that when Paul Burstow reads the MHA report and listens to the BBC program he considers opening a review of the DoLS. My feeling is that in the longer term, things cannot remain where they are. At present it seems to me that the DoLS are costing a great deal of money to administer, and they are not being administered well. Because of the problems in the system, the rights guaranteed are not "practical and effective", but theoretical and illusory.

And so, if you're still reading, I'd love to hear your views on the following points:

Could guardianship replace DoLS, as some have suggested?
What are the advantages and disadvantages of appeals going to a tribunal system rather than the Court of Protection?
Could a tribunal system be usefully expanded beyond DoLS to address other disputes about the care and treatment of people who lack capacity?
Could the Court of Protection process be improved or streamlined in any ways?
Do we need procedural safeguards in social care around restrictions on liberty under the Mental Capacity Act, and perhaps around medical treatments as well? And do these safeguards need to come under DoLS?
Should care providers and public authorities be subject to any penalties if they fail to follow the MCA with respect to serious medical treatments (e.g. failures in IMCA referrals) or restrictions on liberty?
Should people still have a right of appeal if they are objecting against their confinement, but there is no viable alternative to their placement?
How could the CQC improve their leadership around the MCA and DoLS?

If you've got any views on this, please do write them in the comments below or drop me an email (lvs202@exeter.ac.uk). If I get enough I'll collate them and put them on the blog - so do say whether you'd be happy for me to include your comment and name or not.

Carl Gardner: Is it useful to hitch safeguards to human rights?

2011-11-25T05:44:00.000-08:00

In response to my piece on why the Mental Capacity Act couldn't be 'policed' by a regulator Carl Gardner from the Head of Legal blog offered some very insightful and interesting comments. He's kindly allowed me to reproduce them here (and see also this post from his blog). They've given me much food for thought and I've written a separate post raising questions generated by the comments of Carl and others: perhaps it's not useful for human rights safeguards to be linked a 'human rights' instrument at all.

Thanks for responding in such detail, Lucy. I think this is a really interesting discussion. I can't reply to everything you've said, but I do want to say what I think the difference between us is (I'm not sure we're disagreeing as much as it might appear on the surface) and why I worry about an instinctive reaction "against" the Cheshire judgment.

I'm not against safeguards for people whose liberty is restricted, or who are placed in settings like Z House. The more safeguards there can be, the better. Bring them on. I also want more training, much higher pay and a much higher social status for care workers of all kinds. I don't think that's "pie in the sky", either. I think it can happen if people actually want it, make a political choice that it must happen, and vote for it.

The problem we have, I think is that the deprivation of liberty safeguards (which I'm not an expert on, but am learning about with the help of this blog) were introduced as I understand it in the shape of s4A of the MCA and Schedule A1 in order to deal with a particular problem: the previous lack of procedural and other safeguards for people detained (in the article 5 ECHR sense) for care when unable to consent. That was the problem flagged up by HL v UK. So the DoLS provisions were designed to precisely fit that "gap" in protection (what I think practitioners called "the Bournewood gap"). They apply where there is an article 5 deprivation of liberty; but not otherwise.

That's understandable in policy terms for several reasons. First, the government obviously wanted to make the MCA human rights-compatible. You do that with precision and by definition if your legislation (section 4A and Schedule A1) hits the "legal target" of applying the DoLS wherever article 5 is engaged.

One advantage (from government's point of view) of going no further is that that minimises the burden of compliance on care providers and local authorities. No doubt that weighed heavily in ministers' minds when deciding when DoLS should apply. Generally, ministers dislike "gold-plating" any requirement seen as coming from Europe, and the surest way of avoiding gold plating is to implement it in this abstract, "exact copy" way.
The other advantage is, frankly, that it's much easier (you might say it's lazy) to trigger the DoLS by reference to some subsequent judgment (someone's decision about whether article 5 applies) than it is to do do the hard work of deciding precisely what care interventions (locking doors at night; constant monitoring; dressing a cared-for person in particular clothes; sticking fingers in mouth etc.) you think should trigger safeguards.

The trouble is that caselaw on article 5 means it's not easy to say where liberty a person is deprived of liberty rather than merely subject to restrictions. Perhaps we should be critical of Strasbourg for not making things simpler. But the way things are it seems clear you have to look at all the circumstances in detail and consider a whole range of factors. It's not obvious that everyone in placements like P's will be held to have been deprived of liberty. As long as DoLS is triggered by the abstract application of article 5, you're bound to have this problem of variable coverage.

I want to mention what I call the "ratcheting down" effect of human rights. When the HRA was about to come in, I was working on what became the Care Standards Act, and was intrigued by how quickly arguments about fairness turned into arguments about article 6 - and no more. It was as though the minimum guarantee had been accepted as a gold standard of fairness in all circumstances, so that no one could ask for anything more than an article 6-compliant process. In fact I think the focus on article 6 "ratcheted down" procedural fairness to some extent as people stopped arguing for fairness once the government's apparent "trump card" of compliance with article 6 was played.

I mention this because I think it's important for those who want more protection for people like P not to be fixated on article 5. Even if you won the argument, and P is held (say by the Supreme Court) to have been detained, all you achieve is that the detention has to be justified as proportionate. Oh, and the DoLS apply of course - if you've hitched the DoLS to article 5.

I think this is the prize you want. That sounds a good idea to me, too - or at least that some assessment, review, advocacy and authorisations short of the full DoLS should be required in a case like P's. These are the sort of thing I meant in my earlier comment by "management and regulatory" functions. I didn't mean all could be safely left to a distant regulator only doing occasional inspections - although I do think a powerful, well-funded regulator can play an important role.

So the question is, how to achieve it. One way is for judges to apply article 5 widely, which would (without legislative change) have the result of applying the full DoLS in more cases. Maybe you're right, and P should be seen as detained - I can see the argument, and maybe Munby LJ's "comparator" approach is wrong. But unless there's a simplifying revolution in ECtHR law, it's never going to be easy to know when a5 kicks in, and you're always going to have (aren't you?) uncertainty, from the care worker's point of view, about when DoLS apply. It's linked to a complex, context-dependent legal judgment.

And, of course, you'd potentially have widened article 5 in other circumstances. I think we have to be careful about giving article 5 such a wide application that it would catch P''s mother when she was looking after him, for example.

The alternative is to get away from the link to article 5, and do that hard work of identifying interventions, perhaps well short of a deprivation of liberty, which should trigger some sort of assessment - perhaps the full DoLS, perhaps less (again, something that it's hard work to decide), regardless of the human rights law position. This is what I mean when I say (as I didwhen I was lucky enough to be interviewed for Law in Action recently) that in many contexts real progress for human rights needs a focus on the boring detail of regulation, not the high-flown, apparently sexy approach (for lawyers, anyway) of saying human rights law should decide it all.

I suspect what may serve people like P better is legislative change specifically targeted at delivering more safeguards to everyone subjected to more clearly specified intrusive care interventions. That would be simpler to operate on the ground, and needn't wait for grand decisions about whether we need a new Bill of Rights or "human rights plus", or for Cheshire to be reversed or overruled.

Loopholes in human rights protection - let's get it right this time

2011-11-23T01:55:00.000-08:00

After two posts yesterday I had promised myself no more blogging until next week, but I wanted to offer a couple of comments on today's report on the inquity into home care (also known as domiciliary care) by the Equality and Human Rights Commission (EHRC). I'm really glad the EHRC conducted this inquiry, and they've done a really thorough job of it.

Why doesn't the Human Rights Act 1998 apply to home care?

One of the issues that was flagged up in the report was that the Human Rights Act 1998 (HRA) doesn't apply to private home care providers, even if the care is funded by a public body. Effectively what this has meant, is that as local authorities increasingly discharge their statutory community care duties through commissioning of private sector services, the protection offered by the HRA has diminished. The EHRC's report makes all the more chilling the decision by the House of Lords in YL v Birmingham City Council that the Human Rights Act would not apply to private sector care providers. The case concerned a elderly woman with Alzheimer's who was being evicted from her care home, run by Southern Cross, because the care home found her family difficult to deal with. By the sounds of things, the family were pretty abusive to Mrs YL as well, and forcing a dementia patient to undergo a traumatic move because of the antics of their relatives is hardly a caring and 'person centred' response to the issue. The case before the House of Lords turned on whether Southern Cross had any responsibilities under the HRA, especially given that her care was funded by the local authority. The House of Lords ruled not, and they ruled not because - in the words of Lord Scott:

To express in summary terms my reason for so concluding, Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti-discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors. [26]

Oh, and because social care was regulated so we don't need to worry [32], and because their Lordships evidently weren't aware that private care providers were shortly to be given powers to detain under the deprivation of liberty safeguards [84]. Here's a statement from Cherie Booth, acting for the National Care Association who intervened in the case, that still makes my blood run cold:

...Ms Booth stressed that the members of the NCA were not charities, like LCF, but businesses owned by private investors. They should have the freedom that any other private business might expect, to dispose of its resources in the way that seemed to it most profitable. Constraints imposed on that freedom by Convention rights held by the residents, what the Chief Executive of the NCA described in §16 of her evidence as "rights of occupation having priority over the right of the care home provider to freely deal with his business asset", were inconsistent with the private status of the care homes. (Court of Appeal, [70])

I think the NCA should hang their heads in shame at this submission, especially in the light of what has happened to providers like Southern Cross whose freedom to dispose of their resources in the way that seemed most profitable left thousands of residents highly vulnerable. The NCA does good work campaigning for increased funding to the sector and improved regulation, but this intervention did them no credit at all.

If ever I need reminding of the massive disconnect from reality of some quarters of the judiciary then I turn to this judgment. I should add that Lady Hale and Lord Bingham gave powerful dissenting judgments. The Labour government expressed outrage and - in response to campaigning by civil society groups including Liberty, Justice, the British Institute of Human Rights, Help the Aged (now Age UK) and the Disability Rights Commission (now part of the the EHRC), passed a measure in s145 Health and Social Care Act 2008 (HSCA) which made any private care home provider, providing services commissioned under the National Assistance Act 1948 (NAA) a 'public authority' for the purposes of the HRA. The civil society groups did a victory dance and went home.

This amendment makes me want to bang my head on the table. I can't work out if legislators and campaigners were ignorant of the fact a substantial portion of state funded care in this country is not provided under the NAA, but under other legislation like the Chronically Sick and Disabled Persons Act 1970, via direct payments or from the NHS, or if they just felt it was an issue for the future. The Labour Government had already failed to support two private members bills which would have closed not only the care home loophole but also the home care loophole, and which potentially would also have brought privately purchased care within the HRA (including this bill, introduced by our current Minister for Social care, and discussed previously here). I think we need to have a wider debate about whether even privately funded care service users need the protection of the HRA. This time, when the civil society groups start campaigning to close the home care loophole (as I hope they will), I hope they remember to include care funded out of direct payments, and also care (including in care homes) funded by the NHS. I'd like to see them consider privately funded care as well, but that may be a step too far. They might also want to think about how human rights can be protected in social care services for children, or that are unregulated altogether and yet still often state funded.

Closing loopholes is not enough

I hope I don't sound too pessimistic about the HRA here, but closing loopholes is only the beginning. How many cases have been brought against private care homes using the HRA since the s145 HSCA was passed? I asked the Ministry of Justice this last year, but they said they didn't know. Certainly Westlaw has no recorded cases, and none spring to mind. Is this because there have been no human rights violations in care homes since the loophole was closed...? I doubt it very much. The problem with a legislative approach like expanding the HRA is that it might sound very nice to lawyers, but it's frankly a bit pie in the sky for the realities of protecting the human rights of this client group, who are very very unlikely to have the resources or rights awareness to litigate.

That's why the approach suggested by the EHRC of positive obligations of other public authorities is so important. In particular, the EHRC suggests that local authorities and the CQC have positive obligations to ensure service users' rights are upheld, even if the care is commissioned from a third party. The problem here, of course, is that positive obligations to prevent human rights violations only apply where the state knows or 'ought to know' about them. In home care this is particularly problematic. The inspectors have no right of entry to a person's home to watch care delivery. In my view, the regulator should be duty bound to consult a certain proportion of randomly selected home care service users and their relatives, to find out their perspective on the service being offered. Too often the voices of service users' and frontline staff are unheard or given less credence than those of service managers. Often the CQC does contact a few service users, but not always, and to speak to the most vulnerable clients such as those who lack capacity or have problems communicating will take considerable skills and effort. If anything is going wrong in home care inspectors are highly unlikely to work it out from speaking to management and rifling through the paperwork. Sticky complaints get tidied away, so do any staff files missing vital references and CRB checks... And how many home care inspectors check things like continuity of care? It's a tough one, as you'd have to look back over several weeks' rotas for multiple service users. As for workforce turnover... These are factors which, as the EHRC points out, have a massive impact on care quality and human rights and yet - by devolving care to the private sector regulators and commissioners can shrug their shoulders and say "not my problem".

How to protect the human rights of highly vulnerable individuals against those who are meant to be caring for them is a really thorny issue. The majority of publicly funded home care service users get state funded support because they need assistance in very basic daily activities. Lord Hoffman once commented that many foundational human rights instruments reflected 'a certain moral and political philosophy of man as an independent self-reliant agent'. For many vulnerable people, including those who rely upon care services, this conception of a legal subject is very problematic, as it assumes that people are able to act to protect their own rights. It is not enough to close loopholes in the meaning of public authority, we have to think of ways to ensure that - in the words of Jackson J in Neary v Hillingdon Borough Council - people are 'not only entitled but enabled' to uphold their human rights.

Post-Neary spike in deprivation of liberty cases in the Court of Protection

2011-11-22T10:55:00.000-08:00

The Court of Protection have just sent me some updated figures on deprivation of liberty cases. The figures are quarterly data showing the number of appeals against detention mounted under s21a Mental Capacity Act - so that's appeals against detentions authorised under the deprivation of liberty safeguards - and also deprivation of liberty cases arriving in the Court of Protection by other means. Some of these cases will involve people detained under the deprivation of liberty safeguards, perhaps where the supervisory body has sought a best interests declaration from the court under s15 MCA, and others will be cases where authorisation to detain has to be sought directly from the court because the DoLS don't apply.

What is really striking in these figures is the enormous spike in applications to the Court of Protection in the quarter July-September 2011. Although we will never know for certain, I speculate that this a result of the widely publicised ruling in Neary v Hillingdon (2011) shaking supervisory bodies into pro-actively take ongoing and irresolveable disputes to court. Specifically, the finding in Neary that:

...there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court. [202]

Incidentally, the drop-off in the final quarter is only because the dataset is not complete (ie. we are only halfway through November...).

The data in full is given here:

That's a total of 102 appeals under s21a in total since the DoLS began. I'd love to know what the outcomes were...

The NHS Information Centre reported that by the end of the second year of operation there had been 8,982 completed DoLS assessments, of which 4,951 applications were granted. Now, it's difficult to know how many of those might relate to the same person assessed more than once, but as a very rough ballpark figure, these data suggests that in the second year of the DoLS there were 40 s21a appeals for 4951 authorisations; that's an appeal rate of 0.8%, which is a slight increase on the first year, but still markedly lower than the 2.5% predicted by the impact assessment. Excluded from this are DOLS cases referred to the court by the supervisory body, of course. Even so, one might reasonably ask why everybody is getting their knickers in such a twist about the courts being flooded by applications given how low both the application and the appeal rates still are... I suspect it's because the appeals aren't going to the Court of Protection itself, but the High Court, and this wasn't catered for in the impact assessment. I suspect also that these cases are turning out to be more messy and complicated than anyone would have predicted, and taking up far more of the court's time.

I would have liked to calculate the appeal rate for the quarter following the Neary ruling, but unfortunately the latest DoLS dataset seems to be missing from the NHS Information Centre website.

Also, DoLS watchers should tune in to Radio 4's The Report this Thursday at 8pm for what looks set to be a very interesting program...

Why no care regulator could ‘police’ the Mental Capacity Act 2005

2011-11-22T06:48:00.000-08:00

Last week, in my commentary on the Court of Appeal ruling in Cheshire West and Chester Council v P, I expressed my disappointment that the deprivation of liberty safeguards would no longer apply to many thousands of adults like P, who as a result of an ‘impairment of the mind or brain’ are subject to very restrictive forms of care. One of the responses my commentary received was from Carl Gardner, a very talented legal blogger and experienced barrister and government lawyer in his own right. Carl wrote:

I understand the desire to make sure people like P have as many safeguards as possible, and that his care is properly monitored and supervised. I want that, too.

But that is either a management or a regulatory function, it seems to me, and something that ought to be done by people with experience of care and disability. I don't see how a judge can sensibly do it. I very much agree with you that local authorities and/or regulators need to be properly resourced to do this - again I don't think relying on the courts as a backstop is a good solution. I agree with you too that these sort of supported living arrangements need to be brought within the inspection regime.

But even if some sort of tribunal or judge should have a role, it'd be much better if we simply said there needs to be some sort of special care review jurisdiction. It might sound legally purist, but I don't think it's right to say that people needing intensive care of this sort are "detained", simply so as to obtain the result of getting a judge involved.

I think Carl has posed a really important challenge to my commentary – that proper monitoring and supervision of the care of P and adults like him is a managerial and regulatory role - and it’s one that I want to take time to respond to in detail. I want to make it clear that my argument doesn't hang on the current problems within the CQC's regulatory framework, these are problems that would apply to any system that regulated social care providers.

This is an extremely lengthy post (even by my standards), but in a nutshell, my argument is this:

The kinds of restrictions on liberty permitted by the Mental Capacity Act (MCA) are extremely ethically and legally complex, and require a much higher degree of external scrutiny and expertise than any regulator could ever realistically provide.
Many of the issues around restrictions on liberty go far wider than the remit of the regulator, including commissioning decisions (by public authorities or an individual's own family), or decisions by others like doctors.
The responses of the CQC target the care provider, and yet many of the restrictions on liberty may not be under their control; the levers of the DoLS, however, can target other actors or organisations.

Restrictions on liberty under the MCA touch upon many common law and Convention rights, including Articles 3 and 8 as well as 5 (not to mention equalities and other 'liberty' rights). I have to say I don't particularly care whether we provide safeguards under Article 5 or under other rights, but my point is that the ingredients contained within the DoLS framework are far more suitable to providing real and effective rights protection for social care service users than other legal instruments. The issues around Cheshire for me aren't about whether P or others are detained, it’s about whether people as restricted as P and MEG are in any position to defend their rights if they are violated, without a framework like the DoLS.

‘Restrictions on liberty’ under the MCA are never ‘natural’, ‘inherent’ or obvious

Let’s be quite clear that when we’re talking about ‘restrictions on liberty’ under the Mental Capacity Act (MCA), we are not talking about the kinds of restrictions on liberty a person may experience because their physical condition directly limits their activities. I am talking about restrictions on liberty that are imposed by caregivers, yes - in response to a person’s disability, but nonetheless they arise from social activity not physical impairment. So, for instance, ‘M’ in W v M [2011] is in a minimally conscious state; she does nothing without the assistance of those caring for her. I think in the case of M it would be fair to say she is restricted directly by her disability; it is not that she is attempting to undertake activities and being prevented by those caring for her. To my mind, this stands in direct contrast with the condition of adults who are physically prevented by their caregivers from undertaking certain activities.

I think we should be very cautious about running together disability and restrictions on liberty imposed by caregivers as if they were natural and inalienably conjoined. To my mind, the following kinds of statements to the effect that people like P are restricted not by their carers but by their disability are highly problematic:

‘Each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers. Each is under the continuous supervision and control of her carers (and in the case of MIG, of her foster family rather than “staff”) so as to meet her care needs rather than to restrain her in any way’ MIG & MEG (2010), [233]

‘...some people are inherently restricted by their circumstances and that the “normality” with which we are here concerned is the normality of the life of someone with the relevant condition, not the normality of the life of the able-bodied man or woman on the Clapham omnibus.’ Cheshire appeal, [87]

The comment from MIG and MEG seems to me to be both factually and legally incorrect. It is true that the restrictions they are subject to are related to their disabilities, inasmuch as they would doubtless not be subject to those restrictions if they had no disability, but it is obviously true that their carers are imposing restrictions. And it is also legally true that the restrictions MEG is subject to do amount to restraint, as defined under s6 Mental Capacity Act:

(4)For the purposes of this section D restrains P if he—
(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P's liberty of movement, whether or not P resists.

And it is true that P is subject to some ‘inherent restrictions’ as a result of his impairment, but wearing a bodysuit, and being subject to continuous supervision and control by his carers are neither natural nor essential to his condition. They are a social response to his condition. I’m not saying that these social responses are necessarily wrong, I’m just saying that they carry ethical and legal considerations that are skimmed over in these medicalised and individualised accounts that glibly attribute restrictions to disabilities.

The danger with naturalising or essentialising such restrictions on liberty, rather than acknowledging that they are externally imposed by caregivers, is that we banish them from proper scrutiny. It may be comforting to think that certain restrictions follow naturally from certain kinds of disabilities, and that caregivers always get these restrictions right because it’s just obvious and common sense what restrictions a disabled person should be subject to, but this is not the case. If it were obvious how to respond to such disabilities we should not see such massive historical and cultural variance in what restrictions are applied to disabled people. Cage beds in Eastern Europe would not be a subject for international outcry (see also this BBC report), we would not recoil in horror from schools in the USA that administer electric shocks as ‘correctives’ to autistic behaviours, nor respond with shock to a Dutch psychiatric hospital tethering a young man with learning disabilities to a wall. Whilst undoubtedly one can attribute a certain amount of abuses domestically to foul play and a shocking lack of empathy, many abuses arise not because carers act ‘unnaturally’, but because they lack the experience, skills, expertise or resources to do otherwise.

Restrictions are highly context sensitive and contestable

I want to take a few examples of the kinds of restrictions on liberty that are endemic in social care and destabisise the idea that caregivers will always get them right, then consider whether it is realistically plausible that a CQC inspector – say one that visits annually – could pick up on these. The examples I will deal with are: sedating medications (‘chemical restraint’); ‘mechanical’ restraint; physical restraint; seclusion; access to the community; contacts with people outside the institution. These are – I will argue – the types of issues that mental capacity and best interests assessors could very well pick up on under the DoLS. Furthermore, the responses available under the DoLS are much more appropriate for dealing with these kinds of issues than the powers available to the CQC.

Sedating medications

Sedating medications are very much a live issue in social care. Research for the Department of Health found that annually 180,000 people with dementia were medicated with anti-psychotics, of which only 36,000 (20%) may derive some benefit, and 1,800 deaths and 1,620 cerebrovascular adverse events may be attributed to their use. Even if they do not cause injury or death, their effects can be extremely harmful (see, e.g., this film). I am unaware of any equivalent research conducted into the administration of sedatives and other kinds of anti-psychotics for other groups in social care, but my own experience suggests it may be fairly widespread among adults with moderate or severe autism, although the effects are not always so extreme. Certainly I have worked with people who, like MEG, are prescribed Risperidone to manage their behaviour – and although the prescription will always ostensibly be for therapeutic purposes, often the reality is that it is administered because staff cannot find a better way to respond to challenging behaviours.

By way of contrast to community settings, if patient detained under the Mental Health Act (MHA) were prescribed anti-psychotics for longer than three months, then a Second Opinion Appointed Doctor’s (SOAD) approval would be required. This procedural safeguard is imposed because prescribing such powerful psychoactive medications without consent is a very serious decision, often made upon finely balanced issues that require considerable expertise and experience. According to the Mental Health Act Commission (MHAC) in 2010, almost a quarter of SOAD’s make some change to the treatment (p85). Under the MCA any treatment to an patient who cannot consent must be in their best interests and the least restrictive option, but there are no automatic safeguards to check this is the case. The report cited above suggests that often it is not the case, and worryingly so. If a psychiatrist in a hospital can get treatment decisions wrong, then it is likely they can in the community as well, and even more likely perhaps that a non-specialist general practitioner might. But it is obviously not the role of a CQC inspector visiting once a year to check the prescriptions of all care home residents. They are there to monitor the care home, not the doctor, and I doubt many CQC inspectors would feel confident challenging medical opinion.

Minister for Social Care Paul Burstow told The Telegraph that ‘prescription of antipsychotic drugs “without clear clinical justification”, amounted to “a deprivation of liberty”’ that should –according to the Minister – be dealt with under the safeguards. There’s a problem here: nobody is going to invoke safeguards on the basis that they are administering dangerous sedating medications “without clear clinical justification”. The whole point of procedural safeguards is to circumvent a person’s assumption that they are doing the right thing, to introduce a fresh pair of eyes who may see it from a different perspective. If procedural safeguards are going to apply at all, they must apply even where people are acting in good faith. I’m not convinced that the DoLS are the best framework for addressing this issue, but I do feel confident that a DoLS mental health assessor (who must be a doctor approved under s12 MHA or have 3 years of post-registration experience of the diagnosis and treatment of mental disorder, see Code [4.32]) would query whether such medication was appropriate. And a best interests assessor would be likely to ask probing questions about how and why it were administered, and whether other approaches might be less restrictive and more beneficial. Other procedural approaches than the DoLS could certainly remedy this issue, but currently there are none. Without DoLS ask yourself this: what are the odds of a heavily sedated dementia patient challenging an inappropriate, soul destroying and potentially lethal prescription in court? From the perspective of providing people with ‘real and effective rights’ what does it matter what the MCA says on paper, if the prospects of it being enforced in practice are vanishingly small?

Environmental and mechanical restraint

Environmental and mechanical restraints are measures that are put in place by a care provider that restrict a person’s liberty of movement, without necessarily requiring the ongoing presence of staff. Environmental restraints include locks and ‘baffle locks’ on interior or exterior doors, which only staff can operate. Some mechanical restraints are very deliberately intended to restrict movement, others may not always be deliberately imposed to restrict liberty, but might serve as a form of restraint all the same. Mechanical restraints include, for instance, bed rails to keep people from leaving their beds. Low seating may mean physically frail patients cannot get up and walk around. Lap-straps may tether people to their wheelchair.

Use of mechanical restraints have been implicated in serious cases of abuse. In Cornwall, inspectors found a man with learning disabilities who had been tied to his wheelchair for 16 hours a day and then to his bed at night. I have personally seen a service where a man with severe autism was continuously restrained by staff for most of the day using a rope, tied around the service users’ waist, and held by a lanyard on the staff member’s wrist. Such practices are not generally perpetrated because staff are wicked, but because either they lack the skills, knowledge and confidence to challenge or question these practices, or because the environment itself is entirely inappropriate for that service user. In the situation I witnessed, I believe the service itself was unsuitable for this individual; the grounds were open, the building full of potential risks to staff and service users, and part of the source of the individual’s aggravated behaviour was the presence of other service users. That, and boredom I suspect. Of all the forms of restrictions I will discuss here, mechanical restraints are probably the most likely to be spotted by an inspector.

But an inspector is only likely consider whether restraints are the ‘least restrictive’ possible within a particular service, not whether the placement of the individual in that service is itself inappropriate. CQC inspectors do not inspect local authorities any more, their role is not to question whether an individual should be in a particular environment in the first place, their role is to consider how well that particular service is being run. By contrast, a DoLS best interests assessor can ask the question of whether a service itself is the cause of challenging behaviours, and whether different placements might be less restrictive and more beneficial.

To return to mechanical restraints, the Mental Health Act code of practice states that any form of restraint ‘which involves tying (whether by means of tape or by using a part of the patient’s garments) to some part of a building or its fixtures should never be used’ [15.31]. But whereas for physically mobile people what constitutes tethering is fairly obvious, as the MHAC have pointed out this matter is far less clear for patients who are physically disabled, frail or prone to falls. The MHAC suggested that a system of notifications should be used to ensure that where such mechanical restraints were used, they could be scrutinised to ensure they were being applied in an appropriate fashion. The idea was initially taken up by the Department of Health, but foundered when the MHAC pointed out that given the people who are most likely to be subject to mechanical restraint will not be eligible for detention under the MHA, the scheme would need to apply to non-detained people as well (2009: [5.20]). As things stand, therefore, there are virtually no checks and balances to ensure that mechanical restraints – including those which are prohibited for detained patients – are applied sparingly and appropriately in social are. Although CQC inspectors may flag these issues up, they are unlikely to have time to closely consider whether – for instance – a person like P must use a wheelchair lapstrap when he leaves the premises to stop his posture from slipping, or to ensure he does not abscond. Whether, for instance, patients in a nursing home living room are all happily resting in comfy chairs, or just unable to get out of them. Whether bed rails are to prevent falls, or to cut back on night staff. It is my view, that DoLS assessors would have the resources and the inclination to consider these issues.

Physical restraint

Like other restrictions on liberty, the need for physical interventions are highly contextual and may depend on whether an environment is well designed, whether a person’s needs are being met or there is some source of distress causing their challenging behaviour. Sometimes creative solutions can be found that prevent carers from having to rely on physical intervention to keep somebody safe. Sometimes those solutions require external input from experts. The Cheshire case was a good example of this: in the High Court Baker J initially rejected requests for an assessment of P by an Independent Social Worker, saying he saw no need for it. However, it transpired that the local authority support workers had misled the court as to the degree of physical interventions that P was subject to. The Independent Social Worker, when she conducted her assessment, found that P’s care plan was defective, there was no proper policy in place for the use of physical interventions, and she suggested a measure (P’s bodysuit) that could reduce the need for these interventions. This issue in the Cheshire case came up only because the Official Solicitor had become concerned that the degree of physical restrictions in P’s care might amount to a deprivation of liberty. It was because of this concern that an independent social work assessment was conducted, and the care plan was significantly improved to ensure restrictions were appropriately carried out, documented and kept to a minimum. Had the OS not raised this issue, I very much doubt an inquiry into those restrictions would not have been carried out, and P would be subjected to far more physical interventions than necessary.

I do not suggest that such cases always require the scrutiny of a judge, but evidently the expert advice given by the independent social worker was instrumental in ensuring that interferences with P’s liberty of movement were kept to a minimum. These are the kinds of restrictions that would be scrutinised by a best interests assessor, who herself is very likely to be a social worker with considerable experience in mental health, not to mention likely to have training on the MCA, MHA and human rights law as an AMHP. It is within the remit of a CQC inspector to check whether support staff have undergone training in restraint practices, or comment on any acts of restraint they have observed on a day long visit. It is improbable in the extreme that they could be expected to offer the degree of scrutiny to an individual care plan that may be necessary to address complex risks such as people like P may be subject to. Without wishing to cast aspersions on CQC inspectors, they are generalists – not specialists – the same inspector may visit dementia care homes one day, a dental surgery the next, and a learning disability service the next. The management of risks for dementia patients or highly mobile adults with learning disabilities may well require a degree of expertise and experience not required for the regulatory role.

Seclusion

Seclusion is defined in the MHA code of practice as ‘the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others’ [20]. Forcible confinement is held to have no therapeutic value for the secluded individual. Despite this, services may sometimes have to resort to seclusion in order to discharge their duty of care to other service users, visitors or staff members. In psychiatric detention, the use of seclusion is governed by the MHA code of practice. The MHAC monitor seclusion practices, and their most recent report raised concerns about seclusion in conditions that violated detained patient’s dignity and human rights.

Seclusion is used in social care, although it is often not described as such. I’ve seen staff forcibly confine people to their bedrooms and call it ‘withdrawal’ or ‘time out’. It’s not always done using locks: in one service I temped at the bedroom doors opened outwards into the corridor and when staff were tired –as they often were on 12.5 hour shifts in very demanding services – they would sit with their backs to a service users’ bedroom door, and brace their legs against the other side of the corridor. The service user couldn’t get out, and they could rest, chat, or read a magazine. It has to be said that these kinds of practices are unlikely to be picked up on by an inspector, DoLS assessor or even a manager, since staff can readily get up and leave no trace of the confinement. I include the example only to point out that the absence of locks doesn’t mean seclusion doesn’t take place.

The deprivation of liberty case C v A Local Authority (2011) was concerned with seclusion in a residential school. I think it’s an interesting question whether C would be considered deprived of his liberty post-Cheshire; certainly there was no dispute about alternative residences, and I’m not convinced the restrictions were particularly unusual. I hear not infrequently from concerned carers about seclusion being used in services, including residential services and day centres. In any case, the Court of Protection issued a remarkably creative judgment. They held that since restrictions on liberty were only lawful under the MCA if they were in a person’s best interests, and since it must be in a person’s best interests for best practice to apply, and since most people agreed that the MHA code of practice gave ‘best practice’ guidance on seclusion and restraint, the seclusion and restraint of an incapacitated adult with a mental disorder could only be lawful if it followed the MHA code of practice guidance. I think that’s a great judgment, my only concern is who will actually check, outside of a detaining institution, that the MHA code of practice is being followed? I bet if you rang round most registered managers of community care services, they have no idea what the MHA code of practice even is, let alone that they are supposed to be applying it for the purposes of seclusion and restraint! I also bet, if you asked CQC inspectors, they would be unaware of this judgment as well. By contrast, DoLS assessors are expected to keep up to date with MCA and deprivation of liberty case law and so should be aware of the ruling.

It is certainly possible that regulatory inspectors might pick up on issues around seclusion, but in the case C v A Local Authority it is notable that the use of seclusion seemed actually have stemmed from an Ofsted inspector expressing concern that C’s roaming around naked was a violation of his dignity. The case provides a great example of how complex the issues are around how and when it is appropriate to impose restrictions on liberty; how these issues are not obvious or natural or all. The school’s psychologist had treated C’s desire to be without clothes as a manifestation of his inability to understand social norms. The use of seclusion was aimed at conditioning him against this. In striking contrast, the Court of Protection heard evidence from a consultant psychiatrist that C experienced neurological pain from wearing clothes. The judge directed the local authority to design an entirely new package of care, that required a purpose-built flat for C, and specially trained staff.

My point is this: no regulatory inspector is going to have the expertise to pick up that C was experiencing neurological pain from wearing clothes, nor – I should expect - the confidence to challenge an in-house psychologists’ view. That is not their role, their expertise is far more general than these issues. Furthermore, it is not within the CQC’s powers to direct the local authority to commission an entirely different package of care – their concern is with how well the particular service is run. Responsibilities for care plans that use seclusion and restraint are distributed across commissioners as well as service providers, and it is simply not within the CQC's remit to consider this. There is much more chance a mental health or best interests assessor might challenge a care plan that used seclusion to cope with nudity, and they have far more appropriate powers to remedy its inappropriate use.

Access to the community

Just a few words about access to the community. Much of the deprivation of liberty case law considers how often people can access community based activities in considering whether they are deprived of their liberty. The focus has shifted away from this now, and I’m not sure that a service that offered very few opportunities for community activities would be so ‘abnormal’ as to quality for DoLS post-Cheshire. Often access to the community is not limited by the intentions of the care provider, but by a lack of provision of resources from the commissioner of the care (be they the local authority, the PCT or even a family member). A CQC inspector cannot direct a local authority or family member to cough up so that a person can get out and about; nor are staffing levels even part of the current inspection framework. Meanwhile many best interests assessors have told me how they have used conditions for authorisation under the DoLS to ensure commissioners and managing authorities work together to ensure a person has decent community access. Sometimes noticing where such access hasn’t occurred requires close attention to log books; the care plan does not always live up to reality. Realistically, a regulatory inspector is not going to go through the daily logs of all residents to check whether they’ve been out of the building at all over the past year. It might get picked up on, but it’s pretty unlikely, and they don’t have the powers to address the resourcing issues. However, I know that some good best interests assessors would do this, as they have the resources to focus on individual cases.

There have been cases where a person’s access to the community is not limited because of resources, but to prevent them getting up to perceived mischief. In D Borough Council v AB (2011) ‘Alan’ was deprived of his liberty in order to stop him having sex, and we can infer from the case that he had previously been able to catch buses and attend the doctor’s surgery alone (because it was alleged he had acted sexually inappropriately in those places, [7]). Alan may very well have wanted to challenge these restrictions, but I’m not sure it would count as a detention post-Cheshire. Removing the DoLS framework would remove Alan’s access to advocacy, and external scrutiny to check that the measures really were still necessary. It’s by no means obvious that Alan should be deprived of his liberty just because of his disability. But at the same time, without a framework like the DoLS it's very hard to see how somebody like Alan could realistically challenge these kinds of decisions.

Social contact with people outside the institution

Finally, some issues that come up under the DoLS concern disputes between loved ones and services or authorities, not over residence questions but over contact. Local authorities, care homes and hospitals (and supported living services as well, no doubt) can sometimes be quite tyrannical in blocking guests they perceive to be troublesome or unsavoury. Sometimes there may be good evidence for safeguarding concerns, but sometimes care providers and public authorities proceed as if such evidence existed when in fact these decisions are founded upon suspicion and rumour. Aside from possible safeguarding issues, we know that some services – Winterbourne View springs to mind – operate very restrictive rules about when and where visitors can come. This has the effect not only of compromising a person’s sense of having a home within a particular environment, but also removing a source of scrutiny of care practices therein.

Like many of the issues I’ve discussed here, you could respond that this is an Article 8 and not Article 5 issue, but I’m not really interested in the semantics of this. The point is that the DoLS provide scrutiny, advocacy and leverage for restrictions that clearly engage human rights issues, whatever heading you put them under. But the MCA, quite simply, is not an accessible forum for most people in community care settings to challenge the decisions and restrictions made by others. And even for family members, the DoLS (in theory) provides support from advocates, legal aid and a persmission-free route to court to settle contentious issues that cannot be resolved in any other way. Outside the DoLS framework, challenging these decisions can be very difficult and costly indeed.

Final comments

I’ve gone on rather longer than I meant to, so I’ll bring this to a close. My point is simple: for all its surface simplicity and apparent good sense, the issues underlying the MCA are highly complex, highly contestable, and there are very few procedural checks and balances in social care to ensure restrictions on liberty are appropriate and not abusive. Many of the kinds of issues that come up in social care are unlikely to be spotted by a regulatory inspector, but even if they were it is often not within the regulators’ powers to untangle the complex responsibilities of commissioners, service providers and others.

The DoLS, meanwhile, offer independent procedural scrutiny from assessors with considerable experience and expertise, often much more so than commissioners or providers of care have in relation to human rights issues. They also come with remedies that are far more appropriate than a regulatory warning, requirement, fine or threat of closure. Cases may not always need to go before court (my research suggests that by Christmas 2010 as few as 0.5% of DoLS cases ended up in court, although the figure is said to have risen after the Neary ruling), but there are levers within the DoLS framework that do not draw upon judicial resources.

The MCA, for all its elegance, places very high demands on incapacitated adults to uphold their own rights; by way of contrast the DoLS puts in place a system of procedural safeguards to protect the rights of disabled people which make very few practical demands on them. The DoLS are undoubtedly bureaucratic, badly drafted and riddled with holes, but they offer a much better guarantee of 'real and effective' rights protection than the MCA proper. We are very aware of the difficulties patients under the MHA may have in upholding their rights, that is why we have so many procedural checks and balances, but we seem to be strangely, perhaps wilfully, oblivious to identical issues in community care