Does Article 5 create positive obligations to provide community based care?

An article in Community Care this week commented that a cap on charges for non-residential care, introduced last month in Wales, may create ‘a perverse incentive for authorities to place more people in residential care, as they could then recoup more money in charges.’  For reasons of cost, councils may choose to meet people’s eligible needs through residential care placements, rather than supporting them through community-based services.  This is a thorny area.  There is a general preference at policy level - and often (but not always) for service users - for people to be supported in the community rather than having to leave their homes to go into residential care.  But the reality is that community based solutions can cost more, particularly as people’s needs increase.  Working in care, I have known people whose needs increased to a point where local authorities were no longer prepared to support them in their own homes because it became markedly cheaper to meet their eligible care needs in a care home.  Sometimes this was despite their expressed preference to remain where they were.  Are there any legal reasons arising out of human rights law, that might lend weight to preferences for community based care plans?

39 Essex Street Court of Protection February Newsletter

The excellent 39 Essex Street Court of Protection Newsletter for February is now out.  I can't recommend this newsletter enough, not just for keeping up to date with Court of Protection cases but also for interesting commentary and round up of cases you might have overlooked.  It also discusses some cases not yet published elsewhere.  You can find it, along with older editions, here:

http://www.39essex.com/newsletters/?resultpage=1&

Excellent commentaries on the case of 'Alan' (which I discussed in this post).  Edited highlights:

Vikram Sachdeva says:

The correct test for capacity to consent to sexual relations is a highly controversial topic. The answer depends on an examination of the philosophical basis underlying incapacity law – specifically whether it is justified (on a utilitarian basis) to prevent significant sections of the population from indulging in sexual activity in order to prevent abuse in a small number of cases, or whether fewer should be barred from sexual activity, but with a risk of abuse in a small number of cases which would have otherwise been avoided.

Victoria Butler-Cole points out that:

The law on capacity to consent to sexual relations is in disarray. This decision conflicts with the recent decision of Wood J in LS, and it is difficult to see how the two judgments can be reconciled (or how this judgment can be reconciled with that of the House of Lords in R v Cooper [2009] 1 WLR 1786.

 And...

If this decision is correct, it is clear that the criminal test for capacity under s.30 of the Sexual Offences Act 2003 and the civil test are not the same; a point which was not acknowledged in A‟s case. It may also, counter-intuitively, impose more restrictions on people with learning disabilities rather than promote their sexual freedom, since where an exploitative or abusive relationship exists, the inclination may well be to „fail‟ the individual on the test for capacity (as there is inevitably a degree of flexibility about how much knowledge of, for example, STIs, is required). This could then result in a global declaration preventing sexual contact for the individual in other, non-exploitative contexts. Local authorities and those working in this area can only hope that the issue does receive consideration by the Court of Appeal in the near future.