Care refusal - a public law puzzle

Imagine a situation arises that a person, let’s call him Albert, has growing care needs, and the local authority (having assessed those needs) feels that the only way that all his eligible community care needs can be met is through a placement in a residential care home. There are variations on this situation. It might in theory be possible to support Albert through increasing his home care visits, through overnight support, but this would exceed the resources the local authority is willing to spend on Albert’s care, given that they can (in the authority’s view) be met by the (cheaper) care home placement. There are other variants – a person might be currently in the care home and wanting to return home. A young adult moving out of the family home might want to move into supported living (with their own tenancy) rather than a care home. All have in common two theoretical alternatives: a care home placement which meets all of a person's assessed eligible needs, and living in their own home with some unmet eligible needs.  Now supposing Albert does not want to live in a care home, he wants to live in his own home. What happens next?

Book Review: Community Care and the Law

Authors: Luke Clements and Pauline Thompson

Contributors: Carolyn Goodall; Jean Gould; Edward Mitchell; Camilla Parker; Alison Pickup.

Price: £60 (£57 on Amazon, and £39 for the Kindle edition)

Publisher: Legal Action Group, their page on the book is here

Sample chapter available here.

And while we wait for the Cheshire ruling...

*Drums fingers on the desk*.  Everybody's waiting for the Court of Appeal ruling in Cheshire West and Chester Council v P.  The Cheshire case of course was the one where the naughty local authority rewrote care records after a hearing to disguise the degree of physical intervention (ie. restraint) that was occurring in P's care.  It was this deceit by the local authority that was picked up on in news reports, but at the time I wrote that one of the most interesting things about the case was that it threw yet another spanner in the works as to the meaning of deprivation of liberty.  Specifically I wrote:

Cooperation and coercion

In 1948 we abolished the Poor Law, requiring people to support their relatives on their own or face “indoor relief”, but you wouldn’t realise it talking to many carers. I have lost count of the number of times I have met – or heard of – carers who believe they have a stark choice: either continue to provide care that is draining your own health and reserves, or your loved one will be removed from the home and placed in residential care. I have met carers who provide support virtually round the clock who just need a little more support to keep going – perhaps a few more hours a week, perhaps a holiday once a year – who have been given the impression that if they ask for more help, if they make a fuss, they will be recorded as “unable to cope” and their loved one will be removed. Or, even sadder still, carers who have given up begging for vital support and who feel the only option available to them now is to give up their caring role altogether and concede that they cannot cope.

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?

Respite for Riven's daughter – comments from Re RK

I saw in the news today that the parents of a severely disabled child may be forced to put their daughter into care because – as a result of the cuts – they have lost the support they needed to care for her at home. The case has hit the headlines because the mother concerned had been visited by David Cameron in the run-up to the election, and he had pledged to provide more support for parents like her. Cameron, we are told, is very concerned about this case and has asked the local authority to provide the support the family need. You can read Riven's incredibly moving statement here. This is all very well and good, if it transpires, but what about all the other families who Cameron didn't visit? I'm not sure this case is so unusual, and a recently published judgment on the Mental Health Law online website suggests that – once a child is placed in care due to a lack of support – it may not be so easy to bring them home again.

In Re RK, the parents attempt to argue that their child is effectively deprived of her liberty in the care home they were forced to place her in. Deprivation of liberty is a human rights law concept stemming from Article 5 of the European Convention on Human Rights. If the judge had found that RK was deprived of her liberty, the consequences would have been far reaching, because it would not have been 'in accordance with a procedure prescribed by law' as the Convention requires. It is only lawful to deprive someone of their liberty in certain circumstances. Article 5 does make provision for criminals to be deprived of their liberty in prisons, and also for other groups including psychiatric patients, drug addicts and vagrants (although it's a bit vague on when and why). One of the problems with Article 5, for the government, is that it doesn't make provision for other things that might be a deprivation of liberty, for instance kettling or control orders. This means, for instance, that if kettling protestors were found by a judge to be a deprivation of liberty, the practice of kettling would have to be banned, because it's not one of the permitted uses under Article 5. You can see that this might place a judge under a certain amount of pressure to find that kettling is not a deprivation of liberty. Parliamentary sovereignty, activist judges, European law bossing us around and all that.

Back to RK. Right at the very start of the judgment, at paragraph 6, the council explain that if RK is found to be deprived of her liberty, so might many, many children placed in care homes under s20 of the Children's Act 1989. There is no provision to authorise deprivation of liberty of children under the deprivation of liberty safeguards, and so potentially local authorities would have to apply to the court every time they wanted to authorise placing a child in a care home under s20. They would then have to have this authorisation reviewed on a regular basis by the court. The implications of this could be huge, the council argues – not only because of the time and resources spent applying to the court to authorise all these cases, but because the parents of children deprived of their liberty under the existing framework might try to claim compensation (paras 11-12). This would be a massive drain on the finite, dare I say dwindling, resources of local authorities.

So, before the judge has even considered the situation of the girl at the heart of this case, a loud warning shot is fired by the local authority: if you find she has been deprived of her liberty, the result could be financially crippling to local authorities up and down the country. Are these considerations relevant, we might ask, when the judge has been asked to consider whether RK's situation, on the facts, is a deprivation of liberty? That's a fascinating question. In this great introduction to the Human Rights Act 1998, the authors (including John Wadham – previously director of Liberty, and currently legal director at the Equality and Human Rights Commission) state:

The Lord's approach to deprivation of liberty mirrors that adopted by the domestic courts in relation to Article 3. Faced with absolute rights, the courts apply a proportionality analysis normally reserved for justifying a breach of a qualified right to determine the scope and content of the article. The correctness of this approach is open to question and is likely eventually to be tested before the Strasbourg Court.

What they are commenting on is that when faced with a situation where there is no legal way to justify a deprivation of liberty, the courts apply a 'proportionality' approach to the question of whether a deprivation of liberty has in fact occurred at all. In relation to this case – the judge appears to be considering policy issues as a frame to considering the scope of Article 5. The quibble, in short, is how the financial situation of local authorities' can be relevant to whether this girl is or isn't deprived of her liberty – when surely it's just a question of looking at her situation?

So was RK deprived of her liberty? Would Celyn, Riven's daughter, be, if she were placed in a care home? Ordinarily, when we think of someone being deprived of their liberty, it is in relation to a conscious decision by someone in authority that they will be confined to a particular space and no one is permitted to let them leave. Think of kettling, or control orders, or the situation of prisoners and psychiatric patients. Somebody, somewhere, has decided that they are to be kept within that space. Now, the problem in RK is that s20(8) of the Children's Act 1989 permits the parents to remove her from the care home and bring her home. This means, according to the judge, she can't be said to be deprived of her liberty because no legal obstacle is preventing the family from removing her (para 31). There's the rub; no legal obstacle – that is to say, no court has decided that RK should be removed from her parents' care; the local authority have not applied for a care order or refused to let her go home again. Like Riven, the obstacle the parents face in bringing her home is a lack of support to care for her there. Their lawyers argue that this means that the s20(8) right to bring her home is 'empty', and thus can't be used to argue that the parents are free to bring RK home (paras 32-34). In this argument, RK is effectively deprived of her liberty by a lack of support to care for her at home.

This is where it gets even more interesting. If the judge were to agree that, in effect, RK is unlawfully deprived of her liberty because of a lack of support to care for her at home, he might also have to find that the local authority have a positive obligation to remedy this situation – either by applying for authorisation to detain RK in the care home (or, the more likely preferred option) by supplying those very resources needed to support her in the family home. It looks like this is what the family are trying to do: the proceedings were in fact brought by the family in order to challenge the home care plan the council offered as an alternative to the care home (para 34). Their choice of legal weaponry is interesting. If they thought the care plan was crappy, they could seek a judicial review of the proposed care plan (in fact, para 34 suggests they might). I wouldn't like to speculate how a judicial review would go in this case as I'm far from expert in community care law as it applies to children, but the courts would be forced to take into account RK and her parents' 'right to family life' under Article 8 of the Convention. However, unlike the right to liberty, the right to family life is qualified, and if it carried heavy financial implications it could be weighed against the 'economic wellbeing' of the local authority and the rights of all the other people it has to provide services for. That is to say, Article 5 – if found to be engaged – could be much more potent in releasing the funds.

But, the judge found it wasn't engaged. Despite the practical impossibility of bringing their daughter home, the judge found that their legal right to do so meant she wasn't deprived of her liberty. The judge says 'I do not believe that the means of the parents can as a matter of logic or principle inform the answer to the question of whether RK's liberty is being deprived.' (para 35). So there you have it, it is only the law and people – not a lack of financial means, not poverty – that can deprive one of one's liberty. Deprivation of liberty has to be effected by the decision of a legal subject – is has to be done by someone, not something or some situation.

What does this mean for Riven? Well, if she does decide to place her daughter, Celyn, in a care home, they would be unable to argue that she was deprived of her liberty there to get the local authority to release the funds. They could perhaps seek a judicial review of the local authority decision to cut respite which precipitated their agonising decision. It's unclear how successful they would be, given the sympathy the judges may well have for local authorities' dire financial straits. It's also unclear whether, under the legal aid reforms, they would still qualify for free help and advice – or whether they could afford it if they did not. So what could a family in such circumstances do? Get on the blower to David Cameron, and hope he sits up and listens.

One month before heartbreak: The human rights cost of the cuts

This blog post is dedicated to the Broken of Britain's One Month Before Heartbreak blogswarm campaign to raise awareness of the impact of the cuts on people with disabilities and their carers. The campaign invites blog posts on related topics from all members of the community; as a researcher in human rights for adults with disability and dementia this is my contribution.



Today in Parliament Maria Miller gave us her assurances that the DLA reforms would not directly violate human rights law. I confess, I haven't examined the small print and don't feel able to comment on whether these particular cuts will be found to directly infringe human rights. As a wider issue though, it seems inevitable to me that in the course of time the cumulative impact of cuts to welfare, social care and related public services will be implicated in human rights violations for some of the UK's most vulnerable citizens. Trying to spell out exactly how the austerity cuts will impact on human rights in the UK is like trying to predict the consequences of global warming: almost every informed sane individual on the planet admits they will cause devastation to thousands of lives, but it's very hard to predict exactly how and where. Loving a challenge, I'm going to try and outline some of the ways the cuts are likely to impact on human rights in social care.

1. Cuts to mobility DLA in care homes will reduce opportunities for residents to access the community; the Mencap report gives convincing evidence that local authorities will not make up this shortfall. For some individuals who lack mental capacity, whose choices and freedoms in residential care are already very limited, this loss of opportunities to access the community and keep up social contacts may tip the balance towards a deprivation of liberty. The DoLS draft code of practice explicitly stated that if people are not supported to access the community, this could lead to a deprivation of liberty. When Steve Scown from Dimensions UK writes that people may become prisoners in their own home, lawyers' ears should prick up. The European Convention on Human Rights Article 5 gives a range of reasons why it might be permissible for someone to be deprived of their liberty – because it's cheaper isn't one of them.  Article 8 rights to development of the personality may also be infringed without opportunities to be involved in the community and activities; the right to family life may also be implicated if loss of mobility DLA results in significantly impaired opportunities to visit family members.
2. As the population ages and councils face massive cuts to their central government grant, it seems inevitable that local authority funded social care will be – indeed is being – badly hit. This is likely to have a range of knock-on consequences. With the loss of the ILF and massive cuts to Supporting People grants it will be increasingly difficult for local authorities to fund expensive packages of care in the community, and these care plans may be overlooked in favour of cheaper placements in residential care. This is a retrograde step after decades of working towards improving opportunities for independent living. Families may well be ripped apart as carers are no longer given the support they need to look after their loved ones at home. Just reflect on that for a minute – what is the point of Article 8 of the Convention if not to keep families together wherever possible? Consider this case, of parents who want to bring their child home from residential care but can't do this without an adequate package of care from the local authority. How many more cases like this will see?
3. When people rely on the local authority to fund their care, the local authority has a duty to consider its resources and find the cheapest way of meeting those needs. We already saw, in a much publicised court case about ballerina Elaine McDonald, how a local authority refused to continue to provide carers to help her with getting to the toilet at night – forcing her to use incontinence pads even though she was actually continent. McDonald, understandably, found this a huge affront to her dignity, but the court found the overriding need to consider resources to be more important. McDonald stated '"I can speak up for myself, but what worries me is what's going to happen to people who can't, people who might have dementia, if they are treated like this?"
4. Sometimes residential care is a necessity, and community options are unviable. Under unprecedented financial pressure to find the most cost effective placements, local authorities may be forced to overlook issues like keeping families within reasonable travelling distance of each other. For some families this may make it extremely difficult for them to see each other at all. Particularly for those in rural areas and who are dependent on public transport (also likely to be drastically cut), it may be near to impossible to find a way to visit their loved ones. Imagine this: your husband or wife moves into residential care, and you never see them again because you can't find a way to get there. It sounds outlandish, but I promise you it does happen. Or, more commonly, you can get there but it requires you to take an entire day's travel – meaning your visits are limited to weekly or less. Even at the moment, out of county placements are not unheard of for people with very specialist needs. Not so very long ago a court forced the London Borough of Sutton to build a specialist home for a very disabled young woman themselves, so she could sustain regular essential contact with her family. I wonder if the courts would find that way today?
5. As care providers compete to provide cheaper care they will be forced to make efficiencies themselves, which in turn may result in more restrictive care practices in a variety of ways. As someone who has worked in care for many years myself I can testify that when care providers make cuts to staffing levels or staff hours it becomes increasingly difficult to provide care in a way that is respectful of people's dignity and maximises their freedom. When there aren't enough staff in a care home, for instance, people may be left for long periods of time sitting in soiled clothing, in their own waste, before staff can get to them. When I worked for a domiciliary care provider I remember social workers refusing to fund an extra emergency call for an immobile woman who had been incontinent with diarrhoea: she could wait three hours until the next visit, they said. I wonder how many more times that would occur now (in this case care staff went in their own time, on an uninsured and unpaid visit, to help her out). When service users present with 'challenging behaviour', staff under extreme time pressures are far more likely to reach for the Risperidone than try and figure out what the cause of that behaviour is and find ways to meet the service users' needs. When there aren't enough staff to man a service properly, residents may be shepherded into a single room and the garden will be out of bounds. Activities co-ordinators will probably be among the first to lose their jobs in cash strapped services. Staff training will suffer as council's scale back free courses on dementia care, person-centred planning, the Mental Capacity Act and human rights. In a thousand indirect ways, more than I can detail here, less staff and more poorly trained staff will mean less freedom and less dignity for service users.
6. As Johann Hari points out in this eloquent piece, brutal cuts to the Care Quality Commission have translated over the years into 75% fewer inspections of care homes. Serious human rights abuses are increasingly likely to be missed under this 'light touch' regime. For people with profound learning disabilities or dementia, for those whose friends and family are not able to visit, not able to recognise the signs of abuse, or not in a position to make a fuss when they do, are at increasingly extreme risk of abuse in a system that relies on the most vulnerable and least able to whistleblow, to raise the alarm themselves.
7. And finally, I could hardly end this piece without mentioning that for those individuals who do suffer abuse, who are injured or subjected to indignity or are unlawfully deprived of their liberty, cuts to the legal advice and representation they need to access justice may be the most cruel of all. Some, very limited, areas have escaped the legal aid cuts (for instance, those who are subject to the deprivation of liberty safeguards, but not those who are subject to unauthorised deprivation of liberty), but the vast majority of sources of legal help and advice have fallen under the axe. Extra-legal advice services like the Citizen's Advice Bureau has announced closures; advocacy services commissioned by local authorities are coming under threat.  The Court of Protection, already under-resourced from the moment it came into being, is likely to come under increased pressure as more packages of care collapse under the strain. The already lengthy delays to resolve these cases will grow in the face of increasing demand and diminishing resources, often at great personal cost to those involved, and no small cost to the state.

So, I hope this post have given food for thought for any austerity sceptics out there, who would have you believe the Coalition's cuts can be met by greater efficiencies and no suffering. The sad reality that will be borne out over the next few years, unless the government undergoes a radical change in direction, is that the austerity cuts may come at great cost to human rights, to human lives.