Some thoughts on recent developments in right to die case law

A series of recent court cases have continued to explore the boundaries of our legal rights to determine how and when we die. The case of Tony Nicklinson raises important questions about the right of disabled adults to be supported by professionals in ending their life. By contrast, the case of 'E', an anorexia patient, shows that capacity is an important 'gatekeeper' concept for autonomy over end of life decisions. But E's case also raises questions about how 'best interests' decisions regarding end of life decisions should be made.  The influence of 'intuition' on best interests decisions introduces problematic legal and political issues around uncertainty and arbitrariness. E's case also raises intriguing legal questions about the legal status of Court of Protection 'declarations' of best interests which are not accompanied by an order directing that a particular treatment be provided.

Nearly Legal: Wychavon revisited

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.

DoLS: Back to the drawing board?

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.

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

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.

Applications for permission to the Court of Protection - A statistical analysis

In response to a question about the typical work of a Court of Protection judge, the Senior Judge at the Court of Protection (Judge Denzil Lush) has very kindly shared with me some information he has collated about his workload since 2008.  He has also permitted me to reproduce a statistical analysis I conducted on it here for others who may be interested in the work of the court to look at.

The statistics relate to applications for permission to the Court of Protection.  Except in certain specified circumstances, the Court of Protection requires applicants to seek the Court’s permission before hearing a case.  In general, cases requiring applications for permission are not ordinary property and affairs matters, but relate to deputyships and care and welfare issues.  Certain groups do not require permission to apply, but in general people who are not deputies or LPA’s will need to seek permission (see the Court of Protection rules for more information on when permission is needed).

A few thoughts on the Guardian's Court of Protection piece

The Court of Protection hears cases about some of the most excluded and silenced people in our society.  It is surely a good sign that the media, that MP's and campaigners are sufficiently concerned about their plight that they take such an interest in this court's new jurisdiction under the Mental Capacity Act 2005.  As Amelia HIll has written in the Guardian today, the new Court of Protection came into being in 2007; the primary difference between this Court of Protection and the 'old' Court of Protection is a jurisdiction to hear matters of care and welfare.  According to the most recent Court of Protection report, the vast majority of the court's workload is taken up with property and affairs matters; fewer than 2000 of the 23,000 cases the court heard last year concerned welfare and care matters.  Nevertheless, it is these cases that capture the imagination of the public and the media.  Rightly so.  Amelia Hill is right to draw attention to the types of sensitive and controversial issues that fall within the court's jurisdiction: whether a person should continue to live with their family, or be removed from their care; levels of contact with family members in the presence of allegations of abuse; matters relating to sexuality like whether a person should be allowed to have sex, whether a person should be given contraception or be sterilised, whether a person should have an abortion; matters relating to medical treatments, including the power to coerce medical treatments and surgeries against a person's resistance, etc etc.  This court deals in the most intimate and personal matters in a person's life.  The question the Guardian has taken up, as other media outlets have before, is whether the court should be more open to ensure the decisions it makes are subject to proper levels of scrutiny and debate.

I have written quite a bit on this before (collected under the tag Open Justice), and my primary contention has been that the general rule that identities should be protected and information in the public domain should be subject to court imposed restrictions is appropriate and promotes justice.  I echo the words of Fenella Morris quoted in the Guardian: 'It seems to me there's an unfairness in saying that if you lack capacity, you don't have the right to the same level of privacy and dignity as the rest of us.'  However, I believe there should also be a general rule that written judgments are published for every case (particularly care and welfare cases), and that unless there is a very good reason (given in the judgment) any public authorities involved should be identified.  On the question of media attendance of hearings, I would be interested to know how many hearings the media have actually been refused access to.  From the sounds of what journalists tell me, the process for applying to attend a hearing is costly and involved; I'm sure improvements could be made and I'd like to see what recommendations they propose.  But I'm not sure a general rule of an open court would promote justice.  The media have tended to be involved in cases where families have sought them out and desired that they attend; I doubt that the majority of families involved in Court of Protection proceedings would want this.  The biggest concern would be that a full media gallery would have a chilling effect upon applications applications to the Court of Protection, and drive these decisions further underground away from even the scrutiny of the courtroom.

What I feel many in the media and family justice movement have failed to understand, is that before the Mental Capacity Act 2005 created the Court of Protection these kinds of decisions - around sexuality, medical treatments, family life - were still being taken, but without any kind of judicial oversight.  They were taking place in staffrooms, far from the eyes of either the law or the media, and only rarely did anybody seek judicial authorisation for controversial decisions like removing somebody from their family or forcing medical treatments upon them.  Only rarely would a family manage to challenge a decision they disagreed with.  The Mental Capacity Act 2005 hasn't just magicked up a whole range of new practices that interfere with liberty and family life; it has attempted to impose the rule of law on coercive practices that were already occurring, and offer families an appropriate route to challenge them.

The deprivation of liberty safeguards are another example of where the court's new powers to detain a person in their best interests impose the rule of law on practices that were already - are already - occurring throughout the country on an unscrutinised, unmonitored, and unchallengeable basis.  In the limited amount the deprivation of liberty safeguards have been reported upon, the media have tended towards the view that "more deprivation of liberty authorisations = bad".  This couldn't be further from the truth.  In all seriousness, what did they think the DoLS have changed?  Do they think the care homes and hospitals have suddenly started detaining a whole population that they didn't before?  The truth is that these people were already detained, and they were detained without any legal framework to reduce its arbitrariness and guarantee them a right to appeal.  The issue the media should be concerning themselves with is not that the courts have new legal powers to deprive people of their liberty; but that people up and down the country are currently deprived of their liberty without any legal powers at all.

I was interested that in a separate interview with the Guardian Sir Nicholas Wall:

...used the interview to discuss the court's controversial deprivation of liberty safeguards, which allow council or NHS officials to restrain someone in a hospital, care home or retraining facility for as long as the state deems it to be "in their best interests".

At present, these powers are only available to judges sitting in the high court in London. Wall, however, revealed his support for broadening the remit to include circuit and district judges, with a consultation launched in the next month.

"If we are at the stage where case law has been established, then we can gradually work our way towards having people outside London who are competent in the work of the court of protection, acting as judges," he said.

Care and welfare proceedings in general, and the deprivation of liberty safeguards in particular, are said to be causing significant problems within the Family Division of the High Court, through diverting judicial resources away from their normal business of family cases without any increase in resources.  It is no wonder that Sir Nicholas Wall, then, would want these cases to be heard by circuit and district judges.  I would be interested to see what the consultation finds though, as the case law seems to me to be far from 'established' - in the DoLS at least.  Only a few weeks ago a high court judge refused to rule on whether a person was deprived of their liberty or not, because the case law was so unclear.  Perhaps that will change when the Cheshire ruling comes out though.

I just wanted to take issue with a few comments made by John Hemming on the Court of Protection, reported in the Guardian.

First, he says, the "secrecy" of the process – which can extend to families being ordered not to complain to their MPs about cases in progress – undermines the fundamental principle of British law that justice must be both done and seen to be done.

It strikes me that Hemming is seeking to conflate issues he regularly campaigns on in family justice matters with the Court of Protection.  Indeed, that may be why the article cites the case of Rachel Pullen as a Court of Protection case, when - although it did concern issues of mental capacity - it was surely primarily a family court case concerning her children.  I've never really known what evidence Hemming bases his contention that the family courts are ordering families not to complain to their MP upon, but I would absolutely astonished if this was occurring in the Court of Protection.  I challenge him - and media outlets that reproduce this claim - to provide evidence that a Court of Protection judge has even once ordered a family not to complain to their MP.  [Edit 07/11/2011: John Hemming has been in touch to say that he knows of specific examples where a Court of Protection judge has made such an order. However, he says he can't provide more information without getting his constituents into trouble, which is fair enough.  It was apparently discussed on 17 March 2011, I think in this debate, although I'm not clear which of these cases he is referring to.]

Second point:

The second problem, [Hemming] says, is the use the court makes of single experts to sum up all the evidence presented, instead of a range of experts giving varied opinions.

Instead, Hemming wants disputes dealt with under a tribunal system, where people who are detained may appear in person instead of having decisions taken on their behalf by the official solicitor, on the advice of a single expert.

I have to say I find this argument absolutely laughable.  One of the key differences between the Court of Protection and tribunal systems is surely that such a range of experts and other witnesses are called upon.  That is precisely why Court of Protection cases are lengthy, costly and involved, and why it would be hard to deal with them under a tribunal framework.  It is my contention that the 'best interests' framework under the Mental Capacity Act 2005 has significantly shifted the balance of power away from 'single expert' justice, because it covers such a range of issues.  Unlike many other areas of law, the Court of Protection judges absolutely do not defer to the authority of medical experts, or single experts.  In fact one of the things that is striking about cases like W v M (the case of the minimally conscious woman whose family sought to allow her to die) is the range of voices heard that would normally be ignored in the courts.  Baker J heard evidence not only from medical authorities, but also Occupational Therapists, Physiotherapists, care home managers and even ordinary care staff - not to mention family.  And all their views were accorded respect and considered in hist judgment.  Take another case on litigation capacity, V v R [2011], the court heard evidence from a psychiatrist, a neuropsychiatrist, two neuropsychologists and the claimant's mother.  This is a far cry from the 'single expert' view that Hemming paints, and I'm not really sure what kinds of cases he is referring to.

As for the idea a tribunal system would be better - does Hemming mean a tribunal system like the one used in mental health?  The one so 'secretive' that the media and 'transparency' campaigners have all but forgotten to campaign about it?  The one where Albert Haines had to fight to have his case heard in public, and where - even so - the hospital sent their PR officer to sit in on his interview with the Independent (I'm sure it was his best interests they were looking out for there...).  Talk about secret justice - where are the published judgments for those cases then?  And this system covers far, far more people.  It's true that tribunals are more 'accessible' in certain respects than the Court of Protection, but that doesn't mean they offer a better guarantee of justice. There is research that suggests that the mental health tribunals do not treat patients particularly fairly, that they discredit the views of patients, and that they defer excessively to medical opinion.  They have to do this, in my view, to get through so many cases so quickly; the difficulty with not having a rigid hierarchy of expertise is that you have to listen carefully to everybody's view - and that takes time.  

I agree with Hemming that there are issues in the way litigation capacity is managed in England and Wales; I'd like to be more convinced that the mechanisms for restoring legal capacity are robust.  I'd like to see the people at the heart of these cases more involved in the court proceedings.  But I'm really not sure on what grounds he thinks a tribunal system will help.  Court of Protection cases are lengthy and involved mainly for the reason I've just pointed out: they don't just defer to the opinion of a single expert, they do take the views of family and P themselves seriously, and they balance a whole range of factors beyond the medical.  The single biggest threat to justice in my view is the lack of resources to enable the court to continue to do that.

Bits and bobs

Today I was preparing a 2 hour workshop for carers on community care law.  To accompany the workshop I produced a short booklet for people to take away.  I've tried to word it in plain English - well, as plain as you can get with community care law...  I've put it up here (pdf) in case anyone might find it useful.  Please feel free to point out any errors or omissions, or make any suggestions!

Also, as you may have seen, the Court of Protection delivered its judgment about the case W v M yesterday. The case concerned a request by the family of a severely brain-damaged woman in a minimally conscious state to withdraw her feeding tube and allow her to die. Yesterday the court decided that the principle of preservation of life was decisive in this case. I wrote about the ruling for The Guardian here, and I've previously written a bit about the background to the case here.  Counsel for M's family acted pro bono, and Mr Justice Baker expressed his appreciation of their efforts to support the family, saying 'the family could not have had better representation'.  He commented that:

It's all about Bailii

I was very interested to see The Guardian picking up on the issue of published and publically accessible judgments at the weekend in an editorial.  The Guardian discusses the oft-bemoaned issue of the judgments not being indexed by Google or other web indexing facilities, and consequently the limited use we can make of powerful Google search engines and added features (like alerts, or deeper functionality of Google Scholar – here’s an example with US case Brown v Board of Education).  In response to the Guardian piece, Adam Wagner at the UK Human Rights Blog makes an important point – and one which I have not been as quick to point out in the past as I should have been.  Yes, it can be frustrating when judgments don't make their way onto Bailii, when Bailii’s functionality is limited – but Bailii is the wrong target for our frustrations.  In fact, without Bailii, the open justice agenda would be absolutely stuffed. 

Authoring our ends

For the last two weeks the Court of Protection has been hearing a request from the family of a severely brain damaged who is in a minimally conscious state, to allow her to die.  The official solicitor, who is representing the woman – known as ‘M’ - as her litigation friend, opposes the request.  Until the judgment is published (probably later this week, or early next) we won’t know all the arguments and evidence advanced on both sides.  However, the press are attending the hearing and the family are reported to have said:

‘She can’t move, she can’t speak, she’s fed through a tube, she can’t even enjoy a cup of tea.

'She’s got no pleasure in life; her daily routine is just being taken out of bed, put in a chair, showered, then put back to bed.'

‘There’s no dignity in it.'

‘It’s not a life, it’s an existence and I know she wouldn’t want it.’

They are also reported to have said that ‘she would never want to live a life dependent on others, even if she retained her mental faculties.’

Steven Neary's detention ruled unlawful

I haven't had a chance to read the judgment in full yet, but Jerome Taylor at the Independent was kind enough to send me a link.  You can read the ruling here:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/neary-judgment-09062011.pdf

Hillingdon also tweeted me a link to their statement, which is here:

http://www.hillingdon.gov.uk/index.jsp?articleid=23254

More thoughts to follow...  In the meantime, here's my wishlist for accurate media reporting on the case!

Court of Protection Case Summaries

Judge Denzil Lush is the Senior Judge of the Court of Protection.  Earlier this year the Court were kind enough to share with me some case summaries he had written on Court of Protection cases.  I asked if he would mind me sharing them more widely, as I think many legal and social care practitioners might find them interesting or useful.  He has very kindly agreed, and I've put them up through Google Documents here (if you have any problems downloading the document, drop me an email and I'll send it to you).  Some of the cases have been reported elsewhere, but some look as if they have not.  They range across all kinds of issues.  It's a really handy and well written resource, I'm very grateful to the Court for sharing it.  Adam Wagner at the UK Human Rights Blog has previously discussed the benefits of short judgment summaries, like those produced by the Supreme Court, for ensuring better legal reporting and awareness.  Judges in the under-resourced Court of Protection won't have time for this in most cases, but it's nice to see accessibly written summaries of important cases - particularly for people who don't have subscriptions to services like Westlaw or Lexis.

In other news, a new series of Court of Protection Law Reports is being set up.  39 Essex Street barristers, and Court of Protection Newsletter authors, Alex Ruck-Keene and Victoria Butler-Cole are on the Editorial Board. The first volume will be a 'catch-up' volume of important cases to date.  I just hope that they will continue to publish their much-read and appreciated Newsletter...  If you want to find back-issues of the Newsletter, Jonathan Wilson has put them up here at Mental Health Law Online.  He's also recently posted a book by Judge Eldergill on Mental Health Review Tribunals.  The book was written in 1997, he is reproducing it on the blog 'for historical and academic interest only.'

One of these days, I really must get around to putting up a resources page...  I noticed the Essex Autonomy Project have got one on case studies and one on web resources, that might be useful to anyone with an interest in philosophical issues relating to mental capacity.

My wishlist for accurate media reporting of the Steven Neary case

This week the Court of Protection will conduct a judicial inquiry into the lawfulness of the actions of Hillingdon Council between 31 December 2009 and 24 December 2010 concerning the care of Steven Neary.  Unusually for Court of Protection proceedings, the media have sought - and been granted - permission to watch the case.  Even more unusually, they have permission to identify the individuals and the council concerned, and they are expected to report on it subject to whatever restrictions the court imposes.  You can read the decision of Mr Justice Peter Jackson to permit the media to attend and identify the parties here.  Part of the reason the press have been permitted to identify both Steven and his father Mark, is because the case had received considerable public exposure long before it came before the court.  The presence of the media was not opposed by the council, and the judge commented that:

Steven's circumstances are already in the public domain to a considerable extent. If the claims made by Mr Neary and the Official Solicitor are made out, the facts deserve to be known to the public. If they are not made out, it may be right for the record to be corrected.

Whose copyright is it anyway?

Apologies for radio silence, I've been away on holiday and have a few longer posts brewing for later.  In the meantime, I received a response to a Freedom of Information request I made of Her Majesty's Courts Service, which I'll share.  I wrote to HMCS trying to get hold of some data which could cast light on a) what proportion of court judgements make their way into the public domain via Bailii, and b) how much HMCS spends each year on third party transcription services.  Unfortunately, HMCS weren't able to help me with this part of my request as data is not collected on it and they'd have to look at each case individually.  Of some interest, however, is some information they kindly supplied me on a discretionary basis, in response to my querying who owned the copyright of judgments.  I'll quote their response verbatim:

The position regarding copyright in court judgments is not, however, entirely clear. The Office of Public Sector Information (OPSI), is part of the National Archives and manage all copyrights owned by the Crown on Her Majesty’s behalf. Copyright material which is produced by employees of the Crown in the course of their duties and therefore most material originated by ministers and civil servants is protected by Crown copyright. There is no definitive view on whether court judgments are Crown copyright. Although OPSI, following advice from the Treasury Solicitor, take the view that copyright in court judgments rests with the Crown, in that judges are officers or servants of the Crown and their judgments are delivered in the course of their duties, this is not a universally held view and it can be argued that judges act independently of the Crown and that copyright in court judgments rest with individual judges. OPSI’s position is that insofar as judgments are Crown copyright it is content for them to be re-used free of charge and without requiring prior clearance providing the source is acknowledged.

Consideration would need to be given to the rights of reporters and journalists as published editions of judgments attract copyright protection in the typographical arrangement of their published editions although not in the judgment itself. Reporters may also seek copyright protection for additional content such as head notes and other commentary.

So it seems that the situation is not even so simple as considerations of transcription and  typographical arrangement would suggest; the copyright issues also hinge on the constitutional status of the judiciary itself.

In other news, in a major breakthrough for supporters of Open Justice, Supreme Court cases are to be streamed live online.  You can watch them here on Sky's website, and you can read the press release here.  It's a shame in a way there isn't the flexibility of BBC iPlayer - it seems as if you can only watch them live, but it's a great start.  I'd be intrigued to know whether the BBC were approached to provide the service... [Edit: have just written to them asking, will update when they respond.]

And the Court of Protection has published the judgment following on from the so-called 'quaero-injunction'.  In W v M (2011) Baker J casts light on the reasons he issued an injunction against journalists approaching 65 people in a highly sensitive case.  It's not a little disappointing that most of the media clamour around this judgment has focussed on his including Twitter and Facebook in its injunction, in addition to traditional media, and they have neglected to report several other interesting features of the judgment.  Few outlets (Martin Beckford at the Telegraph being a welcome exception to the rule) have noted that the 65-person injunction on doorstepping has shrunk to including only the family.  And perhaps unsurprisingly, few have reported the extreme distress and anxiety potential 'doorstepping' by journalists posed the family.  This engaged not only their own Article 8 'right to private life', but their Article 6 rights to a fair trial as well since the potential press attention had led them to considering withdrawing their case in court.  Their fear of media harassment was such that it had even threatened to discourage them from visiting their relation, in case the press were waiting for them.

It's not really part of the story the mainstream media want to tell about the 'secretive' court that their methods of investigation were a source of considerable distress to some families, which could act as a deterrent against them seeking justice.  The Times Newspapers Ltd, who were represented at the hearing, accepted the evidence of the families and agreed to the reporting and 'doorstepping' restrictions.  Other media outlets, who subsequently complained about the injunction and accused the court of 'secrecy', did not send their own legal representatives to fight their corner.  I presume that though they have seen the injunction, they have not been party to the witness statements by the family that the Times' lawyers saw.  In my view, for what it's worth, compared with the highly unpleasant image of the press doorstepping a very vulnerable woman in her care home, potentially following her about her business outside the home, photographing her and approaching her distressed family and those who care for her, it is hard to agree with the opinion expressed by John Hemming that these injunctions are 'evil'.

Is publicity always the soul of justice?

Yesterday in parliament an MP used his parliamentary privilege to identify a woman who was threatened with prison for naming the council at the heart of a child protection row she was involved in.  She named her council during a meeting of the All Party Parliamentary Group on Family Law and the Court of Protection discussing Transparency.    The MP was silenced by the Speaker before he had a chance to go any further; Bercow wanted to discuss further – in private – whether the case was in fact sub judice.  No doubt like many others who followed the parliamentary exchange, I sought out information on the identified individual online.  As others have commented, I found no sources of information that gave a particularly well reasoned or calm appraisal of events – which is not to say that what’s written isn’t true.  However what is clear is that allegations made by the mother are extremely serious, both with respect to named individuals and the public authorities involved in the case.  The allegations relate to extremely sensitive and personal information regarding her child, who is also named online.  Even if we assume that the allegations have some foundation in fact, however, I remain unconvinced that this exercise in ‘transparency’ will assist the children at the heart of this case.

Over the last few weeks there has been considerable media coverage of ‘gagging orders’: super-injunctions, hyper-injunctions and quaero-injunctions.  The general consensus in the press, perhaps unsurprisingly, is that they are a matter of grave concern.  Bundled up amongst the celebrity scandals and suppression of matters which – on the surface at least – seem to be in the public interest to know about (Trafigura dumping toxic waste on the Côte d'Ivoire, or paint in ship’s water containers breaking down into toxic chemicals), are several cases relating to the Family Courts and the Court of Protection.  In what I have read, the arguments against ‘gagging orders’ fall roughly into two camps:

1. Gagging orders violate the right to freedom of expression (Article 10 ECHR) of a) the media themselves (e.g. this article), and b) the individuals at the heart of the cases (e.g. this article). 
2. Gagging orders go against the principles of Open Justice, and without the media’s presence miscarriages of justice may go unchallenged – and may even be more likely (e.g. this article, and this one) 

I don’t want to wade into the debate about the Article 10 rights of the media, or of women to ‘kiss and tell’, but I do want to consider in a bit more detail the second argument, succinctly put in these famous passages from Jeremy Bentham:

‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’

‘In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.’

The best argument I have read for greater openness in the Court of Protection and family courts is by the Guardian’s director of editorial legal services Gill Phillips (transcript and audio are available here; I particularly recommend the audio recording).  Coincidentally, Phillips’ speech was delivered in the same meeting of the All Party Parliamentary Group where the council in the child protection row mentioned above was identified.  Following Phillips’ speech, Cafcass head Anthony Douglas gave a talk which began ‘Transparency has disappointingly become more about the rights of adults than the rights of children’.  The text of Douglas’ speech is also worth reading for a counterbalancing point of view, but he was unable to deliver it in full, being heckled off stage by angry families.  One woman can be heard to say ‘you're so deluded, you have no clue how much the people are suffering in this country’, and another ‘people need to speak and express themselves’.  Douglas hastily wound up his speech saying 'Transparency is about transparency of understanding the situation that the child is going through... not about opening up a court process.'  I would differ from him on that latter point; I believe there are things that could be done to open up the court process without infringing the rights of the child.  In any case, tensions evidently ran high in that meeting.

Phillips began by reiterating that it is a ‘fundamental principle of common law that justice is conducted and judgments are given in public’.  Article 6 permits that the press and public can be excluded from the court:

...in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

It is, as I have discussed previously, an unqualified feature of Article 6 (the right to a fair trial) that judgment must be ‘pronounced publicly’ – but in the case Pretto v Italy (1983) the ECtHR found that this criterion was satisfied by depositing a copy of the judgment in a registry open to the public – it didn’t have to be read in open court.  I have argued in several posts on Open Justice that the Court of Protection, and indeed the courts service as a whole, need to ensure that all judgments that are not read aloud in open court are freely accessible to the public in the form of written judgments.  If necessary, as often will be the case in the Court of Protection and family courts, those judgments should be redacted to protect the identities of children or other protected parties to the case.  My interest in this evidently comes from my role as a legal researcher, but I am aware that legal practitioners, practitioners in health and social care (like CB at Fighting Monsters), and users of the courts, are also keen for greater access to case law to improve their understanding and knowledge.  The courts may protest that they issue any judgments that make legal precedent; from the perspective of informing and improving professional practice, this is insufficient.

Publication of written judgments could go some way towards putting greater external scrutiny on the courts, in the spirit of Bentham’s work.  Not only through greater scrutiny of the reasoning of judges, but on the public authorities involved in the cases themselves. I see no reason why public authorities should not be routinely identified in Court of Protection and family court cases (although I am open to argument if anyone would like to suggest any).  In two cases that I am aware of the Court of Protection has allowed the local authority to be identified (G v E, Manchester (2010); Hillingdon v Neary (2011)).  But the court appears to wait upon a request from the press to identify the public authorities in the case, and there are cases where public authorities have been criticised for – at best – poor practice where they have not been identified (in this case, for instance).  Unless public authorities are identified, it is very difficult to see whether there are repeat offenders for certain kinds of poor practice – or even public authorities who show consistently good practice, for instance by bringing matters to the attention of the courts when they should (see this post for a striking example of this).  As Phillips argues, identifying public authorities along with details of cases can also help expose regional disparities in interpretations of the law itself (the example she uses is major variations between local authority interpretations of ‘emotional abuse’).

Phillips also gives a very compelling argument for identification of expert witnesses in the family courts, which is worth quoting in full:

...decisions more often than not will involve courts relying on expert evidence. If that evidence is only heard behind closed doors who can scrutinize it? who can check the science is sound, challenge it if need be? I read last week about the Law Commissions proposals for a new "reliability" test to determine the admissibility of expert evidence in criminal cases to avoid the possibility of miscarriages of justice... The law commission said that the current judicial approach to the admissibility of expert evidence in England and Wales is "laissez-faire"...The Law Commission gave examples of fraudulent experts: Godwin Onubu, a bogus doctor, Barian Baluchi, a bogus psychiatrist, Gene Morrison a bogus psychologist. At least criminal trials take place in open and are reportable. Heaven only knows what level of scrutiny and acceptance is in the family courts!

The debate about identification of expert witnesses in the family courts is an old one.  There are those who argue that the motivation to identify experts is based on a fallacy that expert witnesses are failing the justice system, others might respond that such absolute faith in unscrutinised expert opinion is naïve at best.  Phillips also makes a convincing case that since expert witnesses in the family courts are in the pay of the public purse, we should at least know who they are and when they are being used.

Since identification of public authorities and expert witnesses could also be done through publication of redacted written judgments, would any additional purpose be served by the media being in court?  I wrote previously that it was my view that the press should be allowed to attend the court only with the full and free agreement of the families involved.  This is because for some families, especially those who are litigants in person, the presence of the media could have an inhibiting effect on the stories they are able to tell, and may increase the stress they are already under such that they are less able to present their case.  For other families though, like the Neary family and no doubt like the lady at the heart of this most recent row, the presence of the press may be explicitly desired by them.  For families who feel themselves to have been badly served by public authorities, the media at least appear to serve as an additional safeguard to ensure justice is done and wrongdoing exposed.

The difficulty is that in what coverage I have seen of the complex cases the Court of Protection deal with, the media haven’t particularly covered themselves in glory (I know less about the family courts, so will refrain from commenting here).  From the perspective of accuracy, the vast majority of articles on Court of Protection cases are riddled with errors of fact and law, which go on to (badly) inform what analysis they do bring (including the Guardian’s own reporting).  This recent article from the Daily Mail serves as a case in point; entitled How can it be right? the author makes the familiar argument that the Court of Protection judges deal with some of the most sensitive issues for the most vulnerable in society, and should not be free of external scrutiny in doing so.  To illustrate the kinds of work the Court of Protection does she describes some recent cases where the press have been allowed in, but in doing so betrays a lack of understanding of the context and the issues at stake.  To give a few examples:

• ‘Under the laws [sic] of the Mental Capacity Act of 2005, [the Court of Protection] makes decisions for people deemed to lack the intelligence to do so for themselves.’
• I can see why they have used the word 'intelligence' rather than 'mental capacity', but it carries significantly different connotations. The court, for instance, would hear cases about people in ‘minimally conscious’ states, or with mental health problems, whose intelligence is not in question. Meanwhile, a person with very low intelligence is likely to have mental capacity in respect of some decisions.
• ‘judges can compel these vulnerable souls to undergo surgery, take part in medical experiments, use contraception or have abortions. They can decide if a life-support system is switched off, where a person lives or with whom.’
• What the author neglects to mention here is what a significant improvement this situation is on what came before. Prior to the Mental Capacity Act 2005 there was an enormous legal lacuna around how such decisions were made, and many were made by medical or other professionals, free of external scrutiny, and without recourse to the court at all. In addition to the safeguard of the court, people in these situations should also be referred to an Independent Mental Capacity Advocate, who offers an additional source of external scrutiny.
• 'the CoP judges can authorise what are called Deprivation of Liberty Safeguards.’
• This is just an error in fact. The judges can authorise deprivation of liberty, but the whole point of the safeguards is that supervisory bodies can authorise deprivation of liberty as well without recourse to a judge. In my view we should be less concerned about deprivation of liberty authorised by the courts than the – quite possibly thousands – of cases of deprivation of liberty that are actually occurring in hospitals and care settings but which are unauthorised by the courts or any other public body. 
• ‘[Hillingdon council, in the Neary case] applied successfully to the Court of Protection for a Deprivation of Liberty Safeguard or DOLS order.’ And ‘Mark Neary hired a lawyer and decided to take on Hillingdon Council as well as the Court of Protection which issued the restraining order on Steven.’
• This takes factual inaccuracy to the level of fiction. Hillingdon council authorised Steven Neary’s deprivation of liberty themselves using the safeguards, without resort to a court at all. The court in fact terminated the deprivation of liberty and sent Steven home! 
• ‘Earlier this year, a 41-year-old man living at a council home, and in a relationship with another man, which he said made him happy, was barred by the Court of Protection from ever having sex with any human being again... He will be followed everywhere for the rest of his life by an orderly at the home, unless he is alone in his bedroom.’
• Again, this is fiction. The order in this case was an interim order, not ‘for the rest of his life’, and the judge in fact directed that AB should receive sex education so that he might acquire the mental capacity to engage in sexual relations. 

Even in the context of almost universally inaccurate reporting on Court of Protection cases (the Telegraph, generally, is a welcome exception to that rule)[Edit: I feel in the light of this case I should probably retract that and say instead that Martin Beckford's reporting is usually fairly accurate], this is a particularly bad article.  But it does serve my point.  What benefit is this kind of scrutiny supposed to bring to our justice system?  The judgments in the cases mentioned above are in fact in the public domain, and even then they are reported incorrectly.  What the media often does do is champion the rights of families, by which I mean to say the rights of those family members who are able to express their views – not necessarily always the rights of the protected parties at the heart of the cases.  By all means the media should be free to disagree with the decisions of judges, the evidence of experts, to castigate any unlawful actions by public authorities, but ultimately the courts and the lawmakers will only be responsive to the concerns of the media if they have something well-informed and insightful to say on the matter.  I’m not saying this isn’t possible, just that I’ve seen little evidence that the media are yet ready to take up that mantle in the Court of Protection at least.

And what about identifying the individuals involved, as happened in parliament yesterday?  The Court of Protection does not operate a blanket ban on this, notably identifying Derek Paravicini in this case, and of course the Neary case.  The family court may exercise its discretion in permitting the media to watch the case, but they are still subject to statutory restrictions on identifying children from s97 Children Act 1989 and s12 Administration of Justice Act 1960.  Further restrictions may come into force with the Children, Schools and Families Act 2010.  Phillips regards this as a real obstacle to media coverage of important family law cases:

As long as these two provisions remain in place, the media are going to be reluctant to engage with the family court. The fact is, like it or not, names are needed to make stories work. They bring a case to life and give it real meaning... [T]he reality is that the combination of S12 AJA and S 97 Children‘s Act means there is little possibility of the media being able to report anything that they feel may be of interest to their readers. The reality is that despite the increased access, little has changed and there is still little being reported about family cases.

I suppose my feeling on this really is ‘well tough’, if the issues are that important it shouldn’t be an insurmountable obstacle, although this is no doubt coloured by my not being a journalist.  I really can’t understand why the press cannot report on these cases without naming names.  For weeks after the death of Baby Peter, he was known as ‘Baby P’, but that didn’t prevent extensive media coverage of the case.  I don't doubt, though, that experienced media professionals like Phillips know better - but I would like to think that if important matters of principle are at stake (as there are in the cases reported recently, which remained anonymous), the press would pick up on them anyway.

My concern is that in identifying the children at the heart of these cases – particularly child protection cases and cases where there is a dispute over family contact - there is a real risk of harm being done by the media coverage itself.  Often, but not always, similar principles may apply to adults in the Court of Protection, particularly in matters relating to adult safeguarding.  We respect the right of rape victims to anonymity, why not children who have suffered abuse or acrimonious family disputes over contact?  Why should all the professionals in their lives, all the parents in the playground, and their future friends and colleagues be appraised of some of the most personal and painful details of children’s lives through publication of their name?  Does it help children if parents are able to play out their breakup and make allegations in the press?  Expose poor judicial decision making, poor expert evidence, poor practice by local authorities by all means – but why should we expose children and vulnerable parties as well if this will cause them harm?

This will, inevitably, have an impact of the Article 10 rights of families.  It is impossible to identify the family members without the child or adult relation becoming identifiable by extension.  I really do understand that when families feel failed by the justice system they want to speak out.  Put purely legally, Article 10 rights are qualified rights, and the right of the child to privacy of their current – and future – identities must be balanced against them.  Beyond legal rights though, I support the moral case underpinning this.  Families may respond that they are not speaking out for themselves, but in order to expose injustice and get their children home.  Unfortunately, I’m not convinced as a strategy this will be particularly effective; if anything going to the press is likely to antagonise the courts.  If families have signed an undertaking of non-disclosure to MPs or the press, going back on that order is likely to make them appear less trustworthy on matters relating to their child's welfare.*  And yes, it is a huge pity if families are prohibited (or, more likely, advised against) speaking to their MP - but if it is suspected that that MP is likely to trample over their children's rights to privacy through use of parliamentary privilege I'm less convinced it is the certain travesty of justice it at first sight appears.  In any case, ultimately it’s not the Daily Mail who decides whether their children come home, any more than they decide whether ‘Elisa’s’ daughter gets sterilised, whether ‘Alan’ has sex again, or who even got Steven Neary home.  It’s the courts, whatever view you hold of them.

There is a tension then.  Overall the interests of justice may be served by greater press attention to matters in the family courts and the Court of Protection.  The courts could help themselves by being more forthcoming with the reasons for protecting identities or reporting restrictions, or issuing seeming-draconian orders like banning the media from approaching witnesses.  They could also take positive steps to engage with transparency themselves, by publishing more (anonymised) judgments.  Transparency may also be served by naming the public authorities and expert witnesses involved in cases, whilst protecting – as far as possible – the identities of children and other protected parties.  In some cases a press presence in the courtroom may directly further the individual or overall cause of justice, for instance by exposing faulty expert evidence, or by building up pressure to reform a particular area of law a judge has relied upon.  But the media say they want names, and in naming individuals involved in many cases we may do them no justice at all.  How principled is their stance towards Open Justice then, really, if it is contingent on identifying vulnerable individuals?  It seems to me that the media may have as far to go on this as the courts.

*It's unclear, in any case, how far these are legal undertakings and not elective agreements.  See this post by Carl Gardner, and the comments underneath, for more discussion.  It does seem that this case must have some degree of legal force behind it, if the mother was threatened with prison for identifying the council in a public meeting.

More reading
@CarlGardner raises some important questions about whether  this use of parliamentary privilege was appropriate, here
CB at Fighting Monsters discusses the difficulty knowing the truth behind stories in the press, here.

[Edit: My attention was drawn today to an excellent paper by Lord Justice Munby on transparency in the Family Courts.  He puts the issues much better than I have, and clearly his view carries considerably more weight!  The paper I am referring to is:

Lord Justice Munby, 'Lost opportunities: law reform and transparency in the family courts' [2010] Child and Family Law Quarterly 273

But it's behind a paywall.  However Jonathan drew my attention to a lecture that covers roughly the same ground, available here.

It's wonderful that a senior judge has expressed concerns around Open Justice in the family courts.  I'm not sure that all share Munby LJ's passion for transparency though... 04/05/2011]

Do the DoLS provide an Article 5 compliant right of appeal?

Article 5(4) of the European Convention on Human Rights provides that:

‘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.’

A person deprived of their liberty under the deprivation of liberty safeguards can exercise this right by making an application to the Court of Protection under s21A Mental Capacity Act 2005. Under s21A the court may consider whether the qualifying requirements for deprivation of liberty authorisation are met (see s12 of Schedule A1), the duration of the authorisation, the purpose of the detention and any conditions that authorisation is subject to. The Court of Protection has the power to vary or terminate the authorisation, or direct the supervisory body to do so. The s21A appeal mechanism is, potentially, a very powerful safeguard. The court might consider, for instance, whether depriving someone of their liberty is in their best interests – or even whether they actually have the mental capacity to decide for themselves where they should be accommodated. It could direct that a deprivation of liberty authorisation should be terminated, in effect freeing a person to leave the place at which they are detained.  It did this in the case of Steven Neary just before Christmas and in another (unreported) case in the 39 Essex St Court of Protection Newsletter for January. Or it could place additional conditions upon on authorisation, in order to ensure that detention where it is occurring really is in somebody’s best interests, or is the least restrictive option available. The question I will be exploring in this post is – how effective is this safeguard in practice? My concern is that despite its potency, it remains inaccessible for the vast majority of people who are deprived of their liberty and their families.

Courts mustn't just 'rubber stamp' deprivation of liberty authorisations

An interesting, and mercifully short, Court of Protection case has just been published on Bailii.  In A v A Local Authority & Ors [2011] (I do wish they'd stop using the letter 'A' so much, it makes things very confusing when they're all against 'A Local Authority'), the court heard a case where an 85 year old man with dementia appealed against his detention in a care home, authorised under the deprivation of liberty safeguards.  The court heard compelling evidence from the local authority and his family that, although the man was very unhappy, 'he would dislike wherever he was' [13] and the placement was in his best interests.

In what seems to be an unusual step*, the judge acknowledged that although the assessments and the perspective of the family were in agreement that the detention was in A's best interests, he would direct a Court Visitor (funded by the Court of Protection) to visit A and produce a report on his capacity and best interests [17]. The judge commented:

Balancing transparency with 'secrecy' in the Court of Protection

There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom.    An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.  The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.

Making more judgments available

First, and most pressing from my perspective, is the issue of making judgments available.  As a researcher, I rely on them to see what the law says.  It’s not just law geeks like me though, practitioners desperately need case law to guide them in the tough everyday decisions they make.  It’s not always easy for them to find them - there are ways to find some, but they’re not always obvious, and others never surface at all.

This seems to me to tie into a wider problem about ‘Open Justice’ in this country.  It’s an astonishing fact, that I only became aware of when I became a legal researcher, that it’s terribly difficult for people without expensive subscriptions to services like Westlaw and Lexis to actually found out what the law says.  First there’s the incredible state of affairs that although the government puts statutes online at legislation.gov.uk, it doesn’t necessarily update them when they are amended by future laws.  If you don’t believe me, try looking for the deprivation of liberty safeguards in the Mental Capacity Act 2005.  They should be at the bottom, under Schedule A1 – but they’re not there (or not on the date of writing, readers of the future!).  Here they are though, under Schedule 7 of the Mental Health Act 2007; you’ll notice that the changes to the Mental Capacity Act brought in by this bit of the Mental Health Act 2007 haven’t been updated on the Mental Capacity Act itself.

Case law isn’t much better.  Thanks to the sterling work of the Institute for Advanced Legal Studies at the University of London, all case law from the Court of Appeal and most from divisions of the High Court are available from Bailii.org.uk.  The website looks rather unassuming, but it’s revolutionary in terms of opening up justice; and in my view it’s a great shame that the courts themselves haven’t taken the initiative on doing this.  There’s a great article here on the Binary Law blog about some of the problems faced by Bailii and others in getting the judgments online.  One of the most interesting facts in this post is this:

There is still a restriction on the number of English cases from divisions of the High Court which can be added to the BAILII database, arising from the fact that the shorthand writers who transcribe judgments which have been given verbally (as opposed to those handed down on paper) own the copyright in the transcribed version of the judgment. This prevents the judgment being added to the BAILII database without the consent of the shorthand writer. BAILII, being a free website, has no funds with which to acquire a licence to copy and display these transcripts.

Now, Bailii has added a Court of Protection section to its pages here.  There’s about 9 cases from 2009, 20 from 2010, 2 (at the time of writing) for this year.  In an article I read this morning in the brand new Elder Law Journal (it’s really good – I recommend it – you can order a free copy on their website) District judge Alex Ralton says the Court of Protection receive 19,000 applications in 2009; 75% of those related to property and affairs, and 25% to personal welfare.  You might be forgiven for asking – where on Earth are they then?!

To be realistic, it would serve nobody’s interests if the court made all these judgments publicly available.  Imagine the work taken just in redacting them all, so that people’s names and identifying details were masked?  And who would want to plough through them all in order to find the ones related to their own areas of concern?  Most case law is made by district judges, and is likely to be a relatively uncontentious recital and application of the law.  But there are areas which are still contentious – the deprivation of liberty safeguards are a good example of this – where case law still struggles to make it onto the Baillii website.  Quite a few of them can be found on the Mental Health Law Online website, but even this list is not guaranteed to be comprehensive as it relies on solicitors uploading them themselves (I’m not quite sure why they can be uploaded onto this website and not Bailii – anyone any ideas?!).

One reason why judgments may not be published is that they may not all be suitable for public consumption. Not because they mask anything sinister, but because the judges of the Court of Protection are extremely, extremely busy and under resourced.  Reference to this is made by the Office of Court Funds Official Solicitor and Public Trustee in their report, the Court of Protection report itself, and comments to this effect are made in various judgments.  Judges who have a great deal of cases to sit through may well issue judgments that give directions so that those involved in welfare know what they need to do, but they may not spend so much time on the more theoretical questions like ‘what makes this case a deprivation of liberty?’ or ‘what are the wider principles we should apply to best interests decisions’.  Because mental capacity law is highly fact sensitive it might be confusing to publish these judgments if people were to extrapolate from specific situations to other contexts where they don’t apply.  This may be one reason why the courts themselves have refrained from allowing them to be more widely circulated.  To my mind, this is a real shame, but it’s not straightforwardly the ‘fault’ of the judges – it is to do with wider issues of resourcing the courts themselves. Something that only the government can really remedy.

Allowing the press in

There has been an increasing clamour from the press to ‘open up’ the Court of Protection.  In some respects I have some sympathies with their arguments, but in many I don’t.  The recent judgment of Mr Justice Peter Jackson in London Borough of Hillingdon v Neary gives a great discussion of some of the key issues, and I really recommend reading it.

A general argument in favour of allowing the press to watch proceedings is that ‘there is a public interest in the work of the Court of Protection, and the way it uses its considerable powers to make orders which affect the lives of vulnerable citizens’ [7].  This relates to the wider perception of the Court of Protection in the public domain.  I often feel quite protective of the Court of Protection when I hear the way it is described in much of the popular media.  But misconceptions and suspicion will thrive unless people have a clearer idea of what the court does.  I feel pretty sure that if the public did have a better idea of what went on in the court, what reasoning decisions were usually based on, a lot of these suspicions would subside.  In part, the courts themselves – including the judges – perhaps need to make stronger efforts to engage directly with the press in explaining their reasoning.  I read articles, speeches and other works by judges in academic journals and at conferences which contain important principles around welfare and dignity and placing limits on the paternalistic interventions of the state that few would disagree with – but these don’t filter down to most people.  On the whole, Judges tend to shy away from media attention, and they have good reason to be wary of being seen as ‘political’ or ‘fame seeking’ etc, but if ordinary people are to trust the courts they will need some kind of insight into what they do.  Only the courts can provide that, since they direct what can be said about their work.

In some (hopefully rare) cases families actively want the press to sit in on cases because they want the world to know about any wrongdoing that has been found to occur by other public authorities involved in their lives.  This is a tricky issue, and one that the courts must be careful about.  A first point is that I would be extremely reluctant to have the media sit in on cases where families don’t want them there.  For any families who don't seek their presence, especially those who are litigants in person, it could be extremely daunting to have the press attend hearings - it could well leave families more reluctant to give a full account of what occurred.  Another factor is that a good many Court of Protection cases include very, very sensitive situations, where it’s simply not appropriate that the individuals involved are identifiable and their ‘dirty laundry’ is washed in public, as it were.  Think of the background to the MEG & MIG (P & Q) case – the history of neglect and abuse did not only touch upon the lives of the individuals the case concerned – but their wider families too.  It would clearly be unfair for them to be identified.  There’s a fine balance, between allowing the individuals and families concerned to tell their stories (they have a right to freedom of expression), but not allowing the fear that other, more painful, stories will be exposed to a wider public to prevent them from accessing justice when they need it.

Having said all that, if the courts were to systematically allow the press to sit in where families were angry with public authorities, the resultant press attention would be heavily biased against public authorities themselves.  Clearly this is undesirable for public authorities – and may in fact discourage them from referring cases to court when they should.  It would also feed an unfair perception against their work.  Local authorities in particular intervene at times because the families themselves are not meeting the needs of their relations; in some cases, situations amount to outright neglect and abuse.  We hear a lot in the press about cases of local authority wrongdoing – but for entirely good reasons, local authorities are unable to trumpet when they have intervened because of wrongdoing by families.  It seems to me that it would be inappropriate for local authorities to ever be able to tell 'their side' in these safeguarding cases, no matter how frustrating that must be for professionals involved.  The responsibility for balanced reporting must lie with the press - they must ensure that the public is are aware that sometimes intervention in family matters is appropriate, just as the press would acknowledge it is in child protection.

It would also be undesirable in a wider sense if the press only ever report on cases where public authorities have acted inappropriately.  Serious damage could be done to the public’s faith in them more widely.  I was really frustrated to see in the Independent’s reporting into the Neary case that the lead article said:

Mr Neary's mistake was to turn to Hillingdon council in December 2009 when he was suffering from flu-like symptoms. He asked them to take his son into a residential care home, supposedly for just three days to give him respite.

Using respite services when you need to is not, and should never be reported as, a mistake.  Irresponsible throwaway comments like this cause people to lose faith in the local services they rely on to ensure their loved ones, or themselves, get adequate support and care.  What would have been far more helpful in this instance would be if the papers informed the public about the mechanisms that are available to families to resolve disputes, not pin the blame on respite services.

In general, I have to say, I have been really, really disappointed with the quality of reporting of Court of Protection cases.  From petty mistakes, like papers saying the Court of Protection was set up under the Mental Health Act 2007 rather than under the Mental Capacity Act, to wider misrepresentations of its powers and actions.  I don’t mean to single out Deborah Orr, because I’ve seen very few articles that did report particularly accurately, but some of the comments she made in this article are a good example of the way journalists generally don’t seem to understand the very way the court works.  Orr writes of this case:

In both P's and Alan's cases, the judge, if not the jury, is still out. But a couple of things seem extraordinary. First, it would have been pretty easy to check whether Alan was actually at risk of disease, by checking with his partner. Second, it seems accepted that there is no question that P's partners could or should be controlled.

If Orr had read the judgment carefully, she would have seen that the reason the judge did not consider whether Alan was at risk of infection by his partner was because the case law (in his view of it) directed him to look at the question of whether Alan could decide for himself about sex – not whether sex was in his ‘best interests’.  It would be far beyond the court’s (or the local authority's) powers to direct that another party, not represented at proceedings, were tested for STD’s solely for the benefit of another party.  Likewise, under what jurisdiction would the Court of Protection be able to direct that P’s partners (who may have capacity, or may not) be ‘controlled’?  Orr is right that, on the surface, it might seem extraordinary to some – but surely the point of responsible journalism is to look at what underlies these ‘extraordinary’ appearances and report on that as well.

Someone commented to me on Twitter recently that ‘confidential’ would be a preferable word to ‘secretive’ in describing the Court of Protection – and I agree with that.  The 'secrets' the court keeps it does with good reason.  All the welfare decisions it deals with concern perhaps the most private aspects of anyone’s lives.  Why should these aspects of people’s lives be paraded before the press for the sole reason the person concerned lacks mental capacity?  Most people would be horrified to think that the details of their sex lives, for instance, were to be discussed in front of a court, and adding journalists into the situation hardly makes the process more dignified.  My tentative view – and I’m open to argument on this – is that I see no good reason why the press, if they are that interested, cannot rely on judgments like the rest of us in the vast majority of cases. Even then, there is clearly an issue that those who know the individuals involved may well be able to identify them from the judgment and learn more than they need to know about very personal aspects of that person's life.  But a balance has be brought somewhere between transparency and privacy, and in my view publishing judgments with identifying features redacted brings us closer to it than open court.

I don’t think the courts are ‘secretive’, meant in a pejorative sense.  Aloof, distant, slow to acknowledge and respond to public and professional need for more information about their activities – yes.  But sometimes there are some secrets that are best kept just that, in the interests of all.

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.

An introduction to the deprivation of liberty safeguards

This posting is a brief summary of the deprivation of liberty safeguards for anyone who doesn't know anything about them, but would like some more information. I'm going to be talking a lot about the deprivation of liberty safeguards and the Mental Capacity Act in future postings, some in more technical detail, so it's handy to have a post for me to refer back to for anyone who's new to the concept.



What is a 'deprivation of liberty'?
It seems logical to being with explaining what a deprivation of liberty is, but unfortunately that's one of the hardest things to understand about the safeguards. It's probably easiest to talk you through their history and some examples, because there is no straightforward definition.



The 'deprivation of liberty safeguards' were introduced in 2009 following a famous court case, often called the 'Bournewood case'. The Bournewood case concerned a man called HL, who was autistic and lived in an adult foster placement in the community with two carers, Mr and Mrs E. One day at his day centre, HL became very agitated and distressed. His GP was called, who gave him a sedative and it was decided to take him to Bournewood Hospital. At Bournewood hospital he was admitted 'informally' for assessment and treatment. An 'informal' admission means the hospital don't have legal powers to detain someone; it basically means they are not 'sectioned' under the Mental Health Act. 'Sectioning' under the Mental Health Act means hospitals can detain people who refuse consent to be admitted and treated; the problem for people like HL is they are deemed to 'lack mental capacity' to either give or refuse consent to be treated. This means that when they are compliant, they were historically treated as if they had consented to being admitted. In law though, if someone lacks mental capacity, their being compliant doesn't mean they have consented. HL was very likely 'compliant' because he was heavily sedated, because he lacked the practical and communication skills to kick up a fuss about being incarcerated, and perhaps he was heavily institutionalised having grown up in a long-stay hospital (Bournewood hospital, in fact).



Things came to a head because the hospital refused to let Mr and Mrs E, HL's carers, visit him. They said this was because they didn't want HL to think he could go home with them. Mr and Mrs E took up court proceedings, demanding that HL be returned to their care. They didn't give up, even when the House of Lords said that HL had not been detained (because he'd never actually tried to run away and been prevented) and that even if he had, professionals had acted out of 'necessity'. They fought the case all the way to the European Court of Human Rights, who agreed with Lord Steyn that it was a 'fairy tale' that HL had been free to leave. The European court heavily criticised the UK system of 'informal' detention, because it lacked any proper safeguards for people and their families to appeal inappropriate detention. In response to this judgement, the UK government drafted the 'deprivation of liberty safeguards'.



Since the 'Bournewood case', there have been many other cases where the courts have been asked to determine whether a person is deprived of their liberty or not. The courts found, for instance, that a man in a care home who was not allowed to return home to his wife was deprived of his liberty. They found that a woman with dementia, who was to be removed from her home because her wandering placed her in danger, was deprived of his liberty when moved to a care home. They found a young man with learning disabilities, who was removed from the care of his mother against his and her wishes, was deprived of his liberty. They found that when Manchester Council removed a young man with learning disabilities from his foster carer on 'safeguarding' allegations, and placed him in supported living, they unlawfully deprived him of his liberty.


However, they also found that another young man with learning disabilities who was removed from his mother's care by police was not deprived of his liberty, in no small part because he didn't want to go back to her. They found that adults or children with learning disabilities who live with their parents or foster carers are generally no deprived of their liberty, even if they are locked in their rooms at night and under their carers' constant monitoring. It's really difficult to give any general rules about what constitutes a deprivation of liberty; in my view the courts haven't really produced a consistent line on this, and it's something I'll try and write about in the future. For now though, if you have any suspicions that you or someone you care about is deprived of their liberty, please read on for information about your rights.

What are the 'deprivation of liberty safeguards'?

The deprivation of liberty safeguards, often called the DoLS, are a set of administrative and legal procedures which are there for the protection of anyone who is deprived of their liberty in care homes or hospitals in the UK. Before going on to outline them, it's important to remember that just because the DoLS only apply in care homes and hospitals, people can be found to be deprived of their liberty in supported living or other types of accommodation as well (see below for more on this).


If a care home or hospital deprives someone of their liberty, they have to apply to their local 'supervisory body' for authorisation. For hospitals, the supervisory body is the local Primary Care Trust. For care homes, the supervisory body is the local authority. Most supervisory bodies have a specialist team who deal with these applications, and the ones I am acquainted with are very approachable and friendly and happy to answer questions from professionals or members of the public with specific concerns. So, once the care home or hospital has applied to the supervisory body for 'authorisation', the supervisory body has to carry out a number of assessments to ensure that the deprivation of liberty a) is actually occurring, b) is appropriate. These include checks on the age of the relevant person, whether they have a qualifying mental disorder that warrants 'detention', how restrictive the type of care being provided is and whether it's in the person's 'best interests' to meet their care or treatment needs in that way. If all the qualifying criteria are met, the supervisory body must grant authorisation to the deprivation of liberty for a maximum period of a year, and ensure that they appoint a 'representative' and/or an Independent Mental Capacity Advocate (IMCA) to ensure the relevant person's rights are upheld (more on this below).

The assessment process

There are two key figures in this assessment process: the mental capacity assessor (often, but not always, a medical doctor) and the 'best interests' assessor. Mental capacity assessors check whether the relevant person has the mental capacity to make decisions about their own care – if they have capacity, they might, for instance, decide they want to stay in the care home or hospital (they 'consent' to it), or they might want to discharge themselves. Best interests assessors make sure the care plan is the 'least restrictive' it can be in order to provide the necessary care, and that it is in the person's best interests to provide care in that way. They should consider alternatives, although there seems to be some confusion about how wide the range of alternatives should be. In one case, the judge said that local authorities should always ensure placements with family carers are the top priority of any possible placements, which suggests that supervisory bodies should be considering whether care could be provided with families – if they are willing, and with appropriate support – rather than placing someone in residential care against their family's wishes.

Representatives and IMCA's

Supervisory bodies should appoint an appropriate friend or relative of the relevant person to be their 'representative' under the DoLS. The representative is a very important figure in the DoLS, and they have lots of special rights that are key to making sure the safeguards operate fairly. A guide for representatives by the Department of Health is available here. Representatives have the right to see any reports or assessments about the relevant person, they must also be consulted by the assessors and kept informed of the status of any deprivation of liberty authorisation procedures. If a representative does not agree with the outcome of the supervisory body's authorisation process, they have the right to seek free legal advice and representation, and appeal in the Court of Protection. These are really really important rights, because otherwise it can be very expensive to get legal advice about a deprivation of liberty case, and you might have to pay a lot of money even to ask permission to take the case to the Court of Protection (if this is your situation, don't give up, see below for more suggestions).



Sometimes people who lack mental capacity don't have any friends or family who would make an appropriate representative. In this case, the supervisory body must appoint them an Independent Mental Capacity Advocate (an 'IMCA') who can stand up for the relevant person's rights. The IMCA is an independent figure, who can scrutinise the DoLS process and make sure everything is going as it should – IMCA's can also refer the case to the Court of Protection if they have any concerns.

Section 39D IMCAs: Vital help for representatives and carers

If you are appointed to be a representative, the DoLS can still be very bewildering and it can be difficult to know what your rights are and how you can protect them. Supervisory bodies have a duty to offer representatives the support of a 'section 39D IMCA'. These are people with considerable experience and knowledge of the DoLS, who are appointed to help both the relevant person and their representative navigate the safeguards. An IMCA could, for instance, come to meetings with professionals and offer support, or could help you understand assessments or legal documents. This is a great resource, but not all supervisory bodies remember to offer this help – in fact, some might not even be aware that you have this right. If you are a representative and you think an IMCA might help you, don't be afraid to ask for one - they can be an invaluable source of support and make the entire DoLS process operate more smoothly.

If you're not a representative

A recent report by the Mental Health Alliance found that some supervisory bodies were deliberately picking representatives who supported the deprivation of liberty, and overlooking carers or relatives who opposed it. This is a bit sneaky, because unless you are appointed to be the representative you don't have access to the reports and information you would need to challenge the deprivation of liberty, and you don't have access to free legal advice or representation to bring the case before the Court of Protection. If this is your situation, and you oppose a deprivation of liberty, there are few avenues left open to you. The best first option is probably to politely raise it with the supervisory body, and request that they consider making you the representative or write to you explaining why you were not considered an appropriate choice. If that does not succeed, you may have to seek further advice from local advocacy services or specialist solicitors (see below for guidance on finding solicitors).

If you think someone is being unlawfully deprived of their liberty

If you think you, or someone you know, is being deprived of their liberty without authorisation, the first people to raise this with are the managing authority of the organisation providing the care. In a hospital, this would be the hospital management. In a care home, this would be the registered care manager. If this is occurring in another setting, for instance 'supported living' accommodation that is not a registered care home (you can check this by looking at their CQC inspection report to see if it says 'care home' or 'domiciliary care'), then you should still raise it with the management but bear in the mind that the DoLS will not apply (read on for more information).

Once you have raised it with the managing authority, they have a duty to consider making an application for authorisation from the supervisory body. If they do this, then the assessment process will be triggered as described above. If they do not, and you still believe the relevant person may be being deprived of their liberty without authorisation, then any member of the public has the right to directly request that the supervisory body assess whether the relevant person is being deprived of their liberty. You can do this by contacting the local authority or PCT directly, saying that you think an unlawful deprivation of liberty is occurring and providing the details. There is also a template letter available in this guidance for carers, provided by the Department of Health.

If the DoLS don't apply

When the DoLS were set up they were intended to apply in care homes and hospitals. Even at the time, the Commission for Social Care Inspection (now the CQC) and various other agencies reminded the Department of Health that lots of people who lack mental capacity – particularly people with learning disabilities – actually live in supported living accommodation rather than care homes. Unfortunately, the Department of Health did not take this advice on board and the DoLS do not apply in care homes. This means that there is no assessment process, no free legal aid for representatives and no free right to take the case before the Court of Protection for concerned relatives. It's a big old mess. Some supported living services actually believe that because the DoLS don't apply to them, it's impossible for them to deprive someone of their liberty. It's not. It's happened in this case, and this. If you think that you or someone you know is being deprived of their liberty in supported living accommodation, or perhaps even in their own home by domiciliary care staff, then probably the best first port of call is to contact the local authority and see if they will initiate an investigation under 'safeguarding' procedures. Some local authorities take deprivation of liberty very seriously, and will do this.



If contacting the local authority or PCT does not resolve the problem, the only option may to bring the case before the Court of Protection. Because the DoLS don't apply, you won't have an automatic right to legal aid, although you may still qualify if you are on a low income (contact the Community Legal Service for more advice on this). If you want to attempt to bring a case without legal representation, you would still have to pay a fee yourself to the court. If you plan to go to court alone, you might find the Personal Support Unit's services helpful. There is guidance here on applying to the Court of Protection; the number for the Court of Protection is 0300 456 4600.

Finding solicitors

People who are deprived of their liberty under the safeguards, and their representatives, have an automatic, non-means-tested right to legal aid.  If you are a representative, or you want legal advice on these matters, you will need to find a solicitor who specialises in the deprivation of liberty safeguards. This may be harder than it sounds, as most high street solicitors do not practice in this specialist area. There are no listings of solicitors who practice in this field, but contacting solicitors from the Mental Health Lawyers Association's regional directory is probably a good start. The Law Society also has a 'find a solicitor' search engine, where you can enter your postcode and choose 'mental health and incapacity' from the dropdown menu. Not all solicitors practicing in mental health law will have expertise in the DoLS, but it is probably worth asking them for recommendations of anyone in the area who can. You may have to phone a great many solicitors firms before you find someone who can take on your case, if this occurs please don't be disheartened and keep persevering. And good luck!