tag:blogger.com,1999:blog-7327718065135964598.post1979465922673310216..comments2023-08-10T15:02:51.259+01:00Comments on The Small Places: Local authorities behaving badlyLucy Serieshttp://www.blogger.com/profile/07820866715125284389noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-7327718065135964598.post-52857513173888790042014-02-20T21:16:42.302+00:002014-02-20T21:16:42.302+00:00This case shows yet another LA riding roughshod ov...This case shows yet another LA riding roughshod over the rights of its citizens. I wish I could believe it was the last case I'd ever see but it's just the next in line. I wonder, if the DoLS didn't exist, would this couple have been separated for the rest of their lives? I suspect so......................and how many more?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-56495301137995524632014-02-20T11:34:47.841+00:002014-02-20T11:34:47.841+00:00This is in many respects worse than Neary in that ...This is in many respects worse than Neary in that unlike Hillingdon, this anonymous local authority and its staff had no excuse whatever for ignorance of the legal position. The events in Neary began in January 2010, but Munby J’s judgement in Re A and Re C in which he warned of “an attitude, a mindset, a ‘culture’ which one comes across too frequently for comfort” wasn’t published till May of that year, the judgement in G v E (the Manchester case), which highlighted the importance of Article 8, not until July, and the Department of Health guidance on referring intractable disputes with families to the Court of Protection around the same time. Hillingdon could therefore say that, at least initially, it wasn’t aware that the legal climate had changed since the inception of DoLS, when it was generally assumed (given that the scheme was based around HL, the Bournewood case) that an authorisation was sufficient in itself to prevent someone returning home to live with their family. <br /><br />However, the events in Mrs D started in September 2011, three months AFTER the Neary judgement and when the media storm around it was still at its height. Towards the end of 2011 I ran a course for MHA and MCA Law Ltd spelling out the lessons for local authorities of G v E and Neary and warning of the legal risks and in which I speculated that Manchester and Hillingdon might not be alone. Well, now we know. <br /><br />I’m bound to think, though, that this time it can’t have been ignorance (which Manchester explicitly pleaded, although the judge gave them short shrift) but reluctance. The House of Lords MCA Review Committee received a good deal of evidence to the effect that the legal requirements were being treated by local authorities as merely advisory, due to the very high costs of compliance and the very low likelihood of being found out - and even if they are found out, just £ 27.5k plus costs for over a year’s unlawful and unjustified detention and nobody named and shamed makes it a risk well worth taking. I can remember a time when the Mental Health Act was also treated as advisory – it only ceased to be so after 1983 when lawyers became more active, the Mental Health Act Commission began to get a grip, and the risks to organisations and individuals escalated.<br /><br />It’s a pity that the lawfulness of the DoLS authorisations can’t now be resolved, not least because it would have brought to a head an important issue often raised by Best Interests Assessors. My view has always been that, since an authorisation is given “subject to conditions”, failure to implement them will invalidate the authorisation, but binding conditions can be laid only on the Managing Authority (the care home or hospital), and as this case demonstrates yet again, it’s usually the Supervisory Body as commissioner that’s in the driving seat and is seen to be so by the court. Conditions are, in any case, only recommended by the BIA and the SB needn’t accept any it doesn’t like. It’s not clear, in this case, whether the BIAs were recommending that court action be started or only considered, but if the former, the legal situation would have been quite different if they had been able to make this a binding condition - and had had the courage to do so bearing in mind the costs to their employer.<br /><br />It’s also a pity that the authority was not named. I can understand the reasons why the family might not want this – given Mrs D’s relatively-rare diagnosis it would not be difficult to identify her – but it goes against Lord Justice Munby’s new policy of openness and means that the authority can quietly bury the issue with no repercussions for itself or individuals and no explanation as to why it was allowed to happen and what has been done to ensure it doesn’t happen again. I wonder whether its political leaders know about the case, or the CQC ?<br /><br />Roger Hargreaves <br />Anonymousnoreply@blogger.com