Thank goodness for Strasbourg: Kędzior v Poland

In England and Wales, the government took the questionable decision to hang safeguards against arbitrary detention on a definition of deprivation of liberty to be supplied by the courts.  Care providers, health authorities and local authorities were supposed to keep themselves appraised of the court's jurisprudence on this point, and recognise when they were depriving somebody of their liberty and engage the safeguards.  In doing so, they were opening up the care they delivered or commissioned to scrutiny, and handing the detainee and their family the tools they needed to litigate them both in court.  Brilliant.  What could possibly go wrong?

So, to recap, the courts started out reasonably well and gave analyses of deprivation of liberty which accorded with common sense (e.g. JE v DE, 2006; G v E, 2010).  Things started to go weird in MIG & MEG, where apparently not being free to leave a place no longer had any bearing on whether or not you were deprived of your liberty.  In P & Q the Court of Appeal confirmed that you probably weren't deprived of your liberty unless you were objecting to your confinement or the place you were in did not satisfy a judge's idea of 'normal'.  Being drugged with powerful sedating anti-psychotics might be a factor, but having noted that the Court of Appeal didn't deign to explain why it wasn't in that particular case.  In Cheshire we learned that the 'normality' against which deprivation of liberty should be assessed wasn't the normality of the man on the Clapham Omnibous, it was - to paraphrase - the normality of "people like that".  By this point it became clear that a care provider would have to recognise they were subjecting a person to a degree of coercion which was an excessive  response to a person's impairment in order to give them any safeguards against excessive and unlawful coercion.  I'm sure care providers are falling over themselves to acknowledge that their care is more restrictive than it needs to be.  But Cheshire did at least give you a get out if you had another place to go to (paragraph 58).  Except that only a month later in Re RK a girl who was miserable in her care home, whose family would have offered her a place to live if the local authority would stump up a decent care plan to support them, was found not to be deprived of her liberty.  And then the foreseeable but indefensible descent to C v Blackburn with Darwen - where a man who hammered down the door of his care home trying to escape was found not to be deprived of his liberty because he had nowhere else to go, and CC v KK where a woman who was both objecting and had somewhere else to go was found not to be deprived of her liberty because her objections did not give rise to a 'significant degree of conflict'.

So where are we now?  In order to be deprived of your liberty in a care home of England or Wales you must a) have another place where you could go to, and b) must be objecting sufficiently to give rise to a significant degree of conflict.  If you're reliant on the state to provide you with accommodation, if your family don't want you back, if your home was sold to pay for your confinement in a place where you don't want to live, if you're unable to communicate, if you're too scared to voice your objections, or if you do so but only politely, you are - apparently - at liberty.  If you are subject to round the clock supervision and control, if you are not free to leave the place where you are confined to - temporarily or permanently, if you are drugged so that you cannot express objections, if you are subject to frequent physical restraint, if you are so institutionalised you've given up trying to get away, it is quite possible that you are actually enjoying what passes for a state of liberty in England and Wales.

Well, thank goodness for Strasbourg.

Social work in the Other Europe

On my way out of the house I realised I had nothing to read for a long journey by rail and air.  I grabbed the first book that I could find that would fit in my bag.  My copy of The Case Worker, by György Konrád (1969) is a rather battered edition by Penguin, from a series called 'Writers from the Other Europe'.  It's no longer in print, although you can buy it for a penny on Amazon.  Of course, that Other Europe is long gone now, and Konrád's case worker has no precise parallel in the UK.  The closest analogy to a case worker in 1960's Budapest might be a social worker with a hefty measure of benefits administration thrown into the mix.   The book is based on Konrád's own experiences in such a role.  

I'm afraid all this travelling has left me barely capable of stringing sentences together, but it's fascinating to see the way that Konrád's case worker's role is so imbued with the political and economic logics of that particular time and place.  What is possible, and consequently what is acceptable, is defined by the alternatives on offer.  And the framing of the very purpose of the case worker's role - 'to protect children and safeguard the interests of the state' - sounds so similar, and yet so different, to how social work roles would be framed in the UK today.  The story of the Bandulas is shocking by contrast with the threshold conditions for child protection we operate in the UK today, but the case workers' decision has to be understood by comparison with the institutional alternatives on offer.  And yet, for all the differences, there is something recognisably familiar about Konrád's case worker; his recounting of the power dynamics between case worker and client, his human responses to suffering, and perhaps sometimes also elements of his despair at the system he works within.

A serendipitous judgment

If a judgment can be serendipitous, then this was. Last week I gave a case law update to the fantastic Yorkshire and Humber Best Interests Assessors conference. In that update I talked about Article 8 and issues where an older person wanted to return home, but it was felt they were safer in residential care.   I described case law where the focus had been on a person’s desire to be reuinited with a loved one (in particular, DJ Eldergill’s judgment in A London Local Authority v JH & Anor [2011]), but grumbled that no judgments had yet been published about a person’s desire to be reunited with their home. This surprised me, as there are surely large numbers of older people in care homes who want to return to their homes, but where the ‘family life’ pull isn’t a factor. I then spent the best part of this week complaining about how fuzzy the concept of 'capacity' is, how little detailed guidance (as opposed to equivocal platitudes) the courts have given on how capacity should be assessed, and how much potential for arbitrariness there is in capacity assessments...  So, it was with a great deal of pleasure that Baker J’s judgment in CC v KK and STCC (2012) arrived in my inbox this morning. In the first place, it’s a much needed case about an older person who wants to return home. In the second place, it goes into considerable detail about what a good capacity assessment looks like. This case will not only shore up people’s rights to self-determination, it should also place capacity assessors on a much surer footing about what is expected of them by the law.  (By the by it also talks about the meaning of deprivation of liberty, and - with a few sideswipes at Cheshire - finds that a person who is objecting and 'has somewhere else to go and wants to live there' - see Cheshire [58] - isn't deprived of their liberty because their objections aren't causing enough conflict. But we'll let discussion of the parlous state of DOLS case law pass for now...).

The problem of domination in social care

On his blog today, parent carer Mark Neary described a series of occasions over the past couple of years where some element of support he and his son Steven receive from his local authority has suddenly been withdrawn, and then eventually reinstated without any real explanation. These are decisions with potentially huge repercussions for them, the most recent of which was to stop their housing benefit, which would potentially have had the effect of splitting the family up (again) and rendering Mark himself homeless. Within a month. Horrified, bloggers and journalists including Anna Raccoon, Billy Kenber at the Times and the Radio London breakfast show covered this latest sting in the tail of a story that began with Hillingdon unlawfully depriving Steven of his liberty for almost a year. Mark’s fab solicitor got in touch. And then suddenly, whilst describing what had happened on the Radio London breakfast show, the local authority’s director of social care and housing stated (on air) that they had personally intervened and reinstated the housing benefit pending further discussions. Mark writes:

In less than 48 hours, I swung from terrible despair and fear to triumphant relief and for what? If anyone from the social care field is reading this post, I would genuinely be interested in your theories of how things can change so dramatically, and so suddenly.

I don’t have a theory which can account for what happened in Mark’s particular case, but I do have a theory of why these types of scenarios occur in social care with greater frequency than one might hope. It’s called the problem of domination. [Edit: 14/11/2012: see Mark's response to this post here]

Mental capacity and voting rights

A discussion about care homes refusing to enter residents on the electoral register on grounds that they lack mental capacity to vote on the (brilliant) Mental Health Law Online discussion list prompted me to jot down a few reminders about mental capacity and voting rights.

Is mental incapacity a reason not to put a person on the electoral register?

No.  And failure to provide information to registration officers about a person who is eligible to be on the electoral register may be an offence.

CQC, strategy and inspection frequency

There have been a lot of changes over the last year at CQC.  Chief Executive Cynthia Bower has been replaced by former social worker David Behan, and Chair of the Board Jo Williams resigned last week.  Although there are likely to be bumps in the road in the near future - notably the registration of 8,500 GP practices and the findings of the Mid Staffordshire NHS Foundation Trust Public Inquiry in October - some detect change in the air, a regulator turning over a new leaf.  CQC are currently consulting on their strategy for 2013-16, and one source of contention is likely to be the tricky matter of inspection frequency.  I have previously written about the shift towards 'risk responsive regulation', an idea emerging from the Hampton Report and which resulted in the removal of a requirement for biannual inspections in care services in around 2007.  Under CQC there is no statutory inspection frequency, but last year in interviews amid the fallout from Winterbourne View and uncomfortable witness testimony at the Mid Staffordshire Inquiry Cynthia Bower appeared to commit the CQC to doubling inspection frequency, perhaps to annual inspections (e.g. Community Care, HSJ).  In 2010/11, inspection frequencies sank to an all time low - including, according to data CQC shared with me, an inspection rate of only 6% for learning disability services.  However, CQC recently shared with me updated, data, shown in the graphs below, which shows that in 2011/12 they have worked extremely hard to increase inspection frequencies, with around 72% of all residential care services being inspected that year.  This is really encouraging, the charts below speak for themselves of the effort that must have gone into increasing the volume of inspections.  However, in CQC's recent strategy consultation and statements from David Behan, there are ominous signs of a U-Turn back towards risk based regulation - that is to say, removal or reduction of minimum inspection frequency targets, based on risk.

The conference season

The conference season is upon us, and there are some great conferences coming up on the Mental Capacity Act 2005, the Mental Health Act and the deprivation of liberty safeguards.  Here's a selection, but if you know of others then please do send details my way and I'll post them here.  I am attending a few of these.  Where others drool over seeing their favourite bands in music festivals, I am quite beside myself with excitement about some of the talks, workshops and speakers that are lined up on the MCA and the DoLS... If you know of other conferences, seminars or events that might be of interest to readers, then drop me a line.