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.

A good read

Probably not for summer poolside reading, but you might be interested to know that Cambridge Journals are offering free access to all journals for the next six weeks.  You can find an index of their journals here.  Here are a few that caught my eye...

Safeguards and secrets

The ground shifted subtly yesterday for supervisory bodies in England and Wales.  It wasn’t the earthquake of the Bournewood judgment, but tremors from the Neary ruling will be felt by local authorities and primary care trusts around the country, and perhaps best interests assessors in particular.  The deprivation of liberty safeguards – patchy, bureaucratic, labyrinthine – had finally clunked into life, albeit belatedly, and returned Steven Neary to his father last Christmas.  For everything that can be said about this ruling, about all the aspects of the safeguards that can go wrong, the ways in which they can be distorted and manipulated, and the inherent conflicts of interest at their heart, it is still heartening to hold up this judgment against the ruling of the House of Lords in R. v Bournewood Community and Mental Health NHS Trust Ex p. L and see how far we have come.  The central message of HL v UK, of the importance of due process for people with impaired capacity who are deprived of their liberty, may yet have to fully sink in for some public authorities responsible for supporting and assisting them in their lives – but we can rest assured that it has been very well understood by the judiciary in the Court of Protection.  Mr Justice Peter Jacksons’ ruling was a far cry from deference of the House of Lords’ in Bournewood to professional opinion, the message was loud and clear: the tokenistic application of the safeguards by supervisory bodies is insufficient in and of itself, the court will scrutinise your every step to ensure you have understood and acted upon their spirit.

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!

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.

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.

Steven Neary in the headlines

The Court of Protection allowed the press in for Steven Neary's hearing on Tuesday.  The Independent made it their headline article, and claimed a victory for press freedoms.  I think it is very important that this case is reported - if only because it may raise awareness of problems with the deprivation of liberty safeguards. The Independent's 'victory' didn't, however, change the law - in fact all it required was for the Court of Protection to use its already existing discretionary power to permit the press to enter.  Having said that, the press still have to make a formal application to the court and a judge has to make a reasoned decision, so it's quite a resource-intensive process on all sides.

In my view there are lots of problems with the safeguards - too numerous to list them all here, but I'll discuss them in later posts no doubt.  The main problems highlighted by the case of Steven Neary are that the 'safeguards' themselves are not very effective when families have difficulty understanding or accessing their rights.  I've discussed this in more detail in a guest blog in Community Care magazine.  Not the least of Mark's problems was finding expert help from a solicitor - some told him (wrongly) he couldn't bring his case to court as he wasn't entitled to legal aid.  Even then, he rang over 50 before he found one with any expertise in the case.  In this BBC report Mark Neary says 'In the first seven months of Steven being away, I couldn't get any help at all', so he started up a Facebook group, went to the press, and support started to flood in.  But why wasn't there any help from the professionals?  You shouldn't have to go to the press, to Facebook, to access your legal rights.

There are still lots of unanswered questions about this case.  Here's a few that I will be looking out for in the May judgment, when there will be a full judicial inquiry into what happened:

• Did Hillingdon council act lawfully when they refused to let Steven return to his father's care?
• Was the deprivation of liberty authorisation issued when it should have been - or after they had already begun detaining Steven?
• Was the detention ever in Steven's 'best interests', and did they fully assess all the other options - most importantly, did they give serious consideration to whether Steven could have been cared for at home? Detention must be necessary to prevent harm, and it must be proportionate to the likelihood and severity of the harm.  The courts have previously indicated that family placements should be considered as a priority.
• It's also important to remember that, unlike under the Mental Health Act, under the deprivation of liberty safeguards people cannot be deprived of their liberty for reasons of 'public protection'.  The only reason a risk to the public might be relevant is if that risk might 'rebound' on the person themselves and affect their best interests.
• Do local authorities have a duty to provide additional resources (above and beyond those normally required by community care law) to support people to remain with their families so they are not deprived of their liberty?
• If detention wasn't in Steven's best interests, does this mean Hillingdon and the care provider, or just Hillingdon, have breached Steven's rights?  Can they seek compensation?
• Were Mark, the father's, Article 8 rights to family life breached?
• Did Hillingdon comply with all the procedural requirements of the safeguards - to keep Mark (as Steven's representative) informed of the process at all stages, to provide him with copies of assessments, to inform him of his right to support from 'Independent Mental Capacity Advocacy Services' and refer him if necessary?
• The dispute was rumbling on all summer, by all accounts, so why didn't Hillingdon refer the case to the Court of Protection as a matter of urgency?  Why did it have to wait for Mark to take the case there himself?
• The most important question of all: Why did Hillingdon do it? Why did they refuse to let Steven return to his home? How could there be such divergent opinions of his 'best interests' that a judge sent him home almost immediately in December, when the DoL was still authorised?  To the best of my knowledge, this is the first time this has ever happened since the DoLS came into force.  Was this a case of professional misjudgement - or did something else go wrong?

[Edited to add for clarity: Note, these are questions that the court might consider, not statements of what happened]

There are other, wider, questions this case raises.  There may be situations that are similar to Mark and Steven's where for one reason or another the safeguards cannot be used to get the case into court.  If someone is removed from the care of their family and placed in supported living (as in this case), unless the local authority themselves take the case to court it's very difficult for the family to.  This is because - for some entirely inexplicable reason - the Department of Health decided to ignore the advice of CSCI and others during consultation to extend the safeguards to cover 'supported living' as well as care homes.  Without the safeguards, the family have no right to request the supervisory body assess whether a deprivation of liberty is occurring.  Without authorisation under the safeguards, they will have no automatic right to advocacy and no automatic right to legal aid to take the case to court.

Even if someone is in a care home where the safeguards could  be applied, there is no guaranteeing that the supervisory body will agree that deprivation of liberty is occurring, even if the family object.  This may be more the case following yesterday's judgment on MEG & MIG (P & Q) in the Court of Appeal (discussed in my last post), where judges held that unless the person themselves was objecting they were probably not deprived of their liberty.  Where people have severe illness or disabilities, whether or not they are objecting can be quite subjective.  If supervisory bodies decide they aren't, once again the family would have no recourse to the safeguards.

Even if the supervisory body agree that someone is deprived of their liberty, it was suggested by the Mental Health Alliance that some were deliberately appointing family representatives who didn't oppose the placement.  This is really sneaky.  Unless you are the 'representative' you don't have the right to see the assessments, to be kept informed about the process, to advocacy, legal aid, etc etc.  Ironically enough, Mark Neary was 'lucky' (if you can call it that) - because Hillingdon both authorised Steven's detention, and made Mark the representative.

Holey and problematic as they are, without the safeguards, Mark Neary could have been pretty stuffed.  He wouldn't have been able to get free legal representation - nor advocacy services, and despite a petition and Facebook campaign with thousands of supporters, despite the best efforts of bloggers like Anna Raccoon, despite the support of local councillors and thousands of 'tweeters' behind him, it's not at all clear that Steven would have been home by Christmas.  Nor that you'd be reading about the case in your newspapers today.

(Added 3/3/2011: You can now find the court judgment allowing the press to report here)

[Edit 23/05/2011: I've written a more up to date summary of key issues I hope are reported well in the press here, it's also worth reading the comments underneath for a sense of other considerations from other perspectives]