What is mental capacity?

Today I’ve decided to just put up some notes I’ve been making on “mental capacity” as a legal concept.  They weren’t really written to be a blog post, but I don’t think there’s any harm in sharing them.  It’s not going to contain any great revelations, but I found it interesting to chart how the concept has unfolded from the time of the Law Commissions’ first reports on mental capacity (available under ‘M’ on Bailii).  I’m not a philosopher, but I do find some concepts from philosophy helpful to unpick the ways in which the concept has been used.  If this kind of “abstract” piece isn’t not your cup of tea, maybe come back later in the week for comment on the Neary ruling when it’s out.

Different tests of capacity

The Law Commission discussed different ‘mental capacity’ type concepts in other jurisdictions.  ‘Status’, or ‘category’, approaches make global (or near-global) attributions of decisional capacity on the basis of membership of a particular diagnostic category or legally defined group.  For instance, a status approach might say that anyone within a particular age bracket, or with a particular medical diagnosis, lacks capacity in all matters.   They also noted that the legal status of being a ‘patient’ of the Court of Protection (in its pre-MCA incarnation) effectively deprived them of all contractual capacity ‘whether or not as a matter of fact the patient actually had such capacity’ [3.3]. They rejected status approaches on the basis that they oversimplify the question of whether a person has decisional capacity and they ‘tend to undermine respect for individual rights’ [2.43].  Certain kinds of status approaches are explicitly precluded by s2(3) Mental Capacity Act 2005 (MCA).

Outcome based approaches attribute capacity on the basis of the outcome of a particular decision.  The Law Commission gave this pretty short shrift, saying:

‘A decision which is inconsistent with the views and values of the assessor, or rejects conventional wisdom is by definition incompetently made’

and

‘This penalises individuality and demands conformity at the expense of personal autonomy’ [3.4]. 

They reported, however, that many respondents felt that doctors were applying an ‘outcome’ approach, whereby a person was taken to lack capacity if they rejected a course of treatment which the doctor advised.  Section 1(4) MCA can be seen as a caution against ‘outcome’ based approaches.  I'll consider below whether the MCA formulation allows 'outcome based' approaches in by the back door.

In the event, the Law Commission proposed what they called a ‘functional’ approach, on the basis that it was the most strongly supported by respondents to their consultation, and had ‘the merit of being the approach adopted by most of the established tests in English law’ [3.5].  This ‘functional approach’ was combined with a diagnostic threshold, giving rise to what is referred to in the code of practice as the ‘two-stage test of capacity’ (p41). Unlike status or category approaches, a functional approach is ‘decision specific’ – a person’s mental capacity can only be determined by reference to their ability to make the decision in hand. 

The first stage of capacity assessment: Invoking a diagnostic threshold

Section 2(1) MCA states that a person lacks capacity if they are unable to make a decision ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain.’  The Law Commission considered arguments for and against including a diagnostic threshold [3.10-3.14].  Arguments against included that it might encourage a purely ‘status’ approach to capacity, that it was stigmatising, and that a medical label was in any case superfluous to the legal and moral issues at stake.  The Law Commission felt that the second ‘functional’ stage of the test would discourage a status-only approach, meanwhile, they felt, not having a diagnostic threshold would ‘places too heavy a burden on the functional test... this test is not easy to define or to apply, particularly as to the degree of incapacity which is required’.  They regarded one benefit of the diagnostic threshold as increasing:

...the involvement of people with suitable specialist qualifications in the determination of whether intervention is necessary in an individual case, and what kind of intervention is most appropriate. [3.11]

The formulation quite deliberately reinforces the status of medical and health professional evidence in these matters.  The Law Commission felt a diagnostic test had a role to play ‘in ensuring that the test is stringent enough not to catch large numbers of people who make unusual or unwise decisions’ [3.8]; thus it is medical and health professionals who are charged in law with demarcating the boundaries of madness, non-pathological deviance and eccentricity.  There’s probably a lot that could be said about this decision from governmentality and critical psychiatry perspectives, but I won’t get into that here.  The diagnostic threshold has an influence on the way individuals are described in cases: almost always the first thing we learn about them is their diagnosis, and very often for people with learning disabilities that rather dubious concept – their mental age.  I always wonder how far 'mental age' as a construct has achieved such prominence in case law  because it seems to tacitly sanction paternalistic interventions that we would regard as acceptable in the lives of children, but generally not adults.

The second stage of capacity assessment: The ‘functional test’

The ‘functional test’ of capacity is set out in s3 MCA.  I noticed that in at least one of the Law Commission reports they refer to this as a ‘cognitive’ test.  I am glad they have dropped this terminology. I doubt many psychologists who use the term ‘cognitive’ would mean it in this way, and I share many of the reservations about ‘cognitive’ approaches to clinical psychology expressed by discursive psychologists.  Cognitive approaches can pay insufficient attention to someone's embodied and social context, and offer false claims of neutrality regarding the cultural and political content of the issue under discussion.  By contrast, discursive psychologists acknowledge the 'constructed' nature of psychological concepts, and emphasise that in understanding concepts like 'mental capacity' we should explore what these concepts enable us to do.

There have been attempts to look for ‘cognitive correlates’ of mental capacity by researchers (e.g. Palmer, 2004), but I personally doubt whether these are well founded in principle.  No doubt soon enough we shall see neuroscientists claim to have found the areas of the brain that light up when a person “has capacity”; I hope these claims are treated with the critical caution they deserve.  A key problem with such reductionistic approaches, as we shall see, is that the concept of mental capacity may take into account many features of a person’s circumstances, and many background normative orientations, that would not be picked up in the kinds of tests and scales favoured in neuropsychology.

So, the functional test says that a person is to be regarded as unable to make a decision if they are unable to understand, retain or use or weigh the information relevant to the decision.  It also includes a fourth criterion: the ability to communicate a decision; this was explicitly intended to ensure the MCA covered cases of locked-in syndrome, but may also be important conceptually and legally for people who have limited communication abilities.  Section 3(2) MCA reiterates the message of s1(3), that the most appropriate means to impart the information relevant to a decision should be sought, and a person should be supported in taking the decision for themselves as far as is practicable.  Section 4(3) MCA acknowledges that the capacity to take a particular decision can develop or fluctuate, and requires assessors to consider whether the decision could be taken at a later point when a person may have gained, or regained, capacity.

Epistemic and value commitments in understanding, using and weighing information

In some respects the MCA appears to be a paragon of liberal tolerance of any eccentric or minority views which might inform decisions, but the picture may be more complex than that.  The capacity assessor will need to elucidate exactly what ‘information relevant to the decision’ needs to be understood, retained and weighed in order to make it.  Section 3(4) MCA says that this information ‘includes information about the reasonably foreseeable consequences of (a)deciding one way or another, or (b)failing to make the decision’.  It is hard to see how this aspect of the test could avoid incorporating some subjective judgments as to what information is relevant, and some epistemic commitments about what information is ‘true’ and what consequences are reasonably foreseeable.  The recent debates around capacity to consent to sex illustrate the subjective nature of the 'relevance' point nicely; in D Borough Council v AB the doctor held it to be important that a person understands the nature of consent itself, and the emotional consequences of sex – Mostyn J, deciding, did not.

The epistemic commitments required by a test of capacity to make a particular decision may also be contentious.  Neil Allen has written a great article on this topic, called Is Capacity “In Sight”? (pdf).  He discusses a quote by Munby J in Local Authority X v MM & Anor (No. 1) [2007]:

If one does not “believe” a particular piece of information then one does not, in truth, “comprehend” or “understand” it, nor can it be said that one is able to “use” or “weigh” it. In other words, the specific requirement of belief is subsumed in the more general requirements of understanding and of ability to use and weigh information.”32' [81]

The belief criterion may at times be contentious, particularly if a person is required to have ‘insight’ into having a particular medical diagnosis in order to demonstrate that they have the capacity to refuse treatment for it.  A person may likewise have to concur with treating professionals that a particular treatment would be beneficial, if they are to be regarded as ‘understanding’ the information sufficiently to reject it.  I can also imagine circumstances where a person could be expected to reject certain beliefs of their own to demonstrate understanding, for instance, that homeopathy will not cure cancer.  Allen discusses some interesting examples, including the famous case of Re C (Adult: Refusal of Medical Treatment) [1994] 1 All E.R. 819 (which I can’t find a free copy of online, any links gratefully accepted).  The case Re C concerned a man with a diagnosis of schizophrenia who was under the delusion that he was a great doctor.  He believed that God would cure his gangrenous foot and that medical treatments were calculated to destroy his body, although the doctors believed amputation was the only way to save his life.  The judge found that despite C’s beliefs, he had capacity as there was no evidence of ‘any direct link between C's refusal and his persecutory delusions’.  I heard through word of mouth, although I am not sure if it is correct, that C did in fact go on to survive even without the surgery.

I saw a great talk by Jules Holroyd at a CRASSH event where she discussed possible value commitments underpinning the requirement to ‘weigh’ information; in particular whether anorexic patients might be considered to lack the capacity to refuse treatment if they did not weigh the risk of death or disability sufficiently highly.  Of course some beliefs and values that are not shared by the majority, or by “experts” in a particular field, may nevertheless be accorded respect in law.  This is especially true if they are religious or culturally held by a recognised group.  The legal issue is not whether a person bases their decision on ‘incorrect’ or disputed information, or that they value something in an unusual way, rather the reason for their doing so.  If it is felt to be firmly grounded in a religious or cultural conviction, it will not pass the diagnostic criterion that the failure to believe a piece of information that the capacity assessor holds relevant is caused by an impairment of the mind or brain.  Of course, danger may lurk when 'denialism' or a religious belief are treated as symptomatic of a mental disorder in themselves.

Mental capacity is relational and contextual

“Mental capacity” sounds like a state of affairs in somebody’s head, but it is clear from the case law that the approach taken by judges in the Court of Protection places considerable emphasis on a person’s context and relationships in determining capacity.  A person’s relationships with others may be seen to either improve, or impair, their mental capacity.  The recent case of V v R (2011) is a good example of where relationships and situation have been held to increase mental capacity.  The case concerned a young woman, V, who had suffered a traumatic brain injury.  She was pursuing a compensation claim against the insurers of a vehicle that had knocked her down; her mother had expressed concerns that V lacked litigation capacity, and it was decided prudent by V’s own counsel to settle the matter in case the issue came up later on in proceedings.  According to the testimony of V’s mother, V lacked the concentration required to read legal documents, was prone to making impulsive decisions, and any decisions she did take she took on the advice of her mother.  “The reality” according to V’s mother's testimony “was that she and not the claimant would make any material decision.” [29].  The experts were divided in their views.  In the end, the judge concluded that the difficulties that V might have in making decisions ‘are capable of being ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates’, and thus V was held to have capacity.  The finding that V had capacity was thus not based on what V could achieve in isolation, but on the practical reality that she went through all major decisions with her mother and based them upon her advice, that her mother conducted the day to day running of the case, and that this support was likely to continue in the future.  Thus V’s relationships and the context within which the decisions were taken were central to her having ‘mental capacity’, even though on one view the decisions are “actually” being taken by her mother.

In stark contrast to cases like V v R, are cases where a person is found to lack capacity in part as a result of the coercive influence of others upon their decision making.  Perhaps the best known case of this variety is Re T (1992), where a pregnant woman who was Jehovah’s Witness refused a blood transfusion following a road traffic accident.  The court held that T’s refusal of treatment was not valid, in part because she had not been properly informed of the risks, but also because it was felt that her decision arose more from the undue influence of her mother than her own religious convictions.  The case precedes the MCA, and a better example in the light of the Act might be A Primary Care Trust v P (2009).  The case concerned whether P should move out of his mother’s care, as there were concerns about her overbearing influence and disputes arising out of his epilepsy medication.  The judge commented:

It is utterly clear that they have been deeply and, as I find, unhealthily enmeshed in one another, so much so that when speaking to either about themselves or about the other, it is quite impossible to discern whose voice is actually being heard.  [25]

The reasons that I am persuaded that he lacks that capacity are the cumulative force of the following: a) his epilepsy and its impact on his functioning, b) his learning disability which is at the lower end of mild, c) the enmeshed relationship that he has with AH which severely restricts his perspective in terms of being able to think about his future, d) his inability, frequently articulated by him to those who have interviewed him, to visualise any prospect of having a different view to his mother on any subject that matters and his inability to understand what the other aspects of the argument may be in relation to his expressed wishes simply to return and live undisturbed with his mother.  [37]

In both cases the relevant person’s decisions were strongly influenced by the views of their mother, but in one case this was regarded as enhancing their capacity and in the other it was seen as diminishing it.  It is hard to see how this distinction can be maintained without regard to a wider normative framework over whether the mother’s decisions are ultimately beneficial to the relevant person or not.  Both cases may be quite sensible, practical, outcomes but – to me at least – there is something distinctly unsatisfactory about them when considered side by side.  The wisdom of the outcome of the decision is not supposed to affect whether a person has capacity or not, and yet here the substantive distinction seems to be that the support in one case leads to wise decisions, and support in the other is not regarded as doing so by the court.

The legal issue finds a parallel in some philosophy I have been reading.  Whereas traditionally ‘autonomy’ – the ability to govern oneself and one’s actions – has been regarded as centred within an individual, some new approaches stress the relationality of autonomy.  The Stanford Encyclopedia entry on autonomy in political and moral philosophy has a useful summary and references on this approach.  Writings on relational autonomy tend to focus on issues of oppression, but I read an interesting paper by Francis and Silvers exploring how the autonomy of people with cognitive disabilities could be enhanced through relationships with people they called ‘trustees’ who could assist them with reflection and reasoning (the paper is published in this book, or in a special issue of the journal Metaphilosophy).  Francis and Silvers liken the role of a ‘trustee’ to that of a prosthetic limb for an athlete, and they emphasise that all of us are dependent on others and society more generally to help select and refine the information and values upon which we base our decisions.  I have no difficulty accepting the latter point, but I think I do – on reflection – reject the prosthetic parallel.  The problem is that whilst one’s prosthetic may of course enable a person to run, it is unlikely to be said, itself, to do the running.  It is never likely to be attributed with exercising control over a person in the same was that a ‘trustee’ who helps a person to make decisions could be.  It is a tool that is manipulated by the wearer; it does not have the potential to manipulate.

This seems to me to bring us back full circle to the legal problem; we cannot distinguish between a controlling or a supportive influence without reference to both the outcome of the decision made and an extrinsic normative framework about the value of that outcome.  I may be understanding an interesting essay by Jules Holroyd incorrectly, but I wonder if this is related to a point she makes regarding relational autonomy:

...any account [of autonomy that relies upon S standing in a certain social relation] cannot play one of autonomy’s key normative roles: identifying those agents who ought to be protected from (hard) paternalistic intervention. I argue, against objections from Oshana, that there are good reasons for maintaining the notion of autonomy in this role, and thus that such relational conceptions should not be accepted.

This short extract doesn't do justice to Holroyd’s careful article, but I hope my point is at least congruent with hers.  As is illustrated in the case of V v R, what we may want to call relational autonomy can clearly bring very beneficial consequences, but the danger (metaphysical, legal and real) lurks in how we separate off those cases from those of undue influence.

Capacity is experience based

The case law has developed a clear role for experience and learning in capacity.  In D Borough Council v AB Mostyn J found that ‘Alan’ lacked the capacity to consent to sexual relations, but the court directed that attempts should be made to remedy this situation by providing him with sex education, so that he might attain capacity.  For some issues, a lack of life experience might impair someone’s ability to make a decision because the only way to understand the information is through experience.  For example, in A PCT v P (2009) Hedley J says:

...until P has experienced something other than the care of his mother, then he has no opportunity to make true choices about what he wants for himself.  In the circumstances of this case, it is said this can only be achieved by prising him out of his current relationship, significantly curtailing contact and thereby allowing space for the development of a new experience.  Some believe, and leading amongst those is Dr Milnes, his treating psychiatrist, that this will lead to his regaining capacity and it is recognised that should he do so, that may result in a choice to return to AH.  [57]

Clearly it is rather a drastic step to remove someone, involuntarily, from the care of a parent to enhance their mental capacity, and to do so could not be justified by s1(3) MCA alone.  In this case it required the use of the deprivation of liberty provisions of the MCA.  The Law Commission acknowledged in their earliest paper on mental capacity that:

Maximising freedom or providing equality of opportunity goes beyond mere non-interference. It can, for example, imply a need actively to encourage people to take risks. Even if this has adverse short term consequences , there may be long term benefits which cannot be acquired in any other way. Nearly everyone can learn by experience, however slowly. If harm is taken to include under-achievement and lack of fulfillment, are mentally incapacitated people put at greater risk of harm by receiving too much care and protection, or too little?" [1.12]

So capacity can fluctuate not merely according to one’s physiological state, but also according to the opportunities and learning experiences available to a person.  And opportunities to learn and develop may entail taking risks, which need to be balanced against the overall benefits of increased personal autonomy and fulfilment.

Assessment of capacity

I’ll bring these comments to an end now, although this far from exhausts the matter.  I hope I’ve given some convincing reasons to doubt that mental capacity could be determined solely by reference to performance in some laboratory tests or a brain scan!  I just wanted to offer some passing thoughts on the assessment of capacity itself.  We have seen that the case law acknowledges that mental capacity may be contingent on a person’s relationships with those in their immediate circle, their life experience, and their current context, but I think it’s also important to note that it may depend on their relationship with the capacity assessor themselves.  The context of capacity assessment, and the relationship a person has with the person assessing their capacity, may impact on the outcome of the test.  The ability a capacity assessor has to communicate with the relevant person will affect the outcome directly – through MCA s3(1)(d), but also indirectly as they may be less able to communicate to the relevant person the information required for the decision.  This means, for instance, that the level of staff training in communication techniques like Makaton, or even staff turnover, may have a direct effect on the ‘mental capacity’ of people within a particular service.  If a person does not like or trust a particular member of staff or professional, they may not engage in full enough communication to evidence their capacity.  The quality of the relationship may be paramount; we should be concerned, therefore, about the effect of services that do not provide good continuity of care upon a person’s ability to exercise what autonomy they are potentially capable of.

Another issue around capacity assessment that troubles me, particularly where assessments are very formal and undertaken for the purposes of writing a report, is that the assessment process itself may be experienced as an invasion of someone’s privacy.  Even if a person is found to have capacity, the experience of being assessed, having to give reasons for one’s decision, demonstrate that one understands and can weigh certain pieces of information, could potentially be quite intrusive.  It certainly has the potential to place a person in a position of felt inferiority to the person doing the assessing.  I sometimes wonder whether professionals undertaking these kinds of assessment seek the consent of the relevant person first, and of course, whether that assessed person has the capacity to give that consent.  Directions from the court might dispense with the need for that consent, but I do sometimes wonder what happens about capacity assessments that precede court hearings where a person refuses to co-operate with the process.  I heard recently about a case where a person was thought by their solicitor to lack litigation capacity, so the solicitor wrote off to their GP who replied that in their view they lacked it.  I have no idea about the veracity of the claim, but it would trouble me if the relevant person had not consented to that information being disclosed.

It is a wider problem in Court of Protection cases, that I have commented on before in relation to the case D Borough Council v AB, that in striving to ensure people’s rights are upheld, there are dangers that the legal processes themselves may entail other harms which will need to be balanced.  I can see no obvious way around this; I support the principle that people should be protected against harmful decisions they lack the capacity to make, but the very act of assessment that this principle entails may be experienced as oppressive or demeaning by some.  We should approach capacity assessment, therefore, respectfully and with caution, and be careful not to forget s1(2) MCA: the starting point is the presumption that all people, regardless of appearances, have capacity. 

Quick update - legal aid for s21A appeals

A while back I wrote a post about the low numbers of s21A appeals under the deprivation of liberty safeguards (DoLS).  I noted that according to data the Court of Protection shared with me, 8 appeals were by litigants in person.  I'm afraid I forget who it was, but someone suggested this might be because the Legal Services Commission were refusing some would-be claimants legal aid on a merits test, perhaps on the basis that their appeal against detention was unlikely to succeed.  I looked into this further by writing to the LSC, who confirmed today that between April 2009 and December 2010 there were 67 requests for legal aid for s21A appeals, none of which were refused.  So it seems the LSC, like the Court of Protection, take the view that all appeals against detention should be heard and treated seriously - and the court should never just 'rubber stamp' an authorisation under the DoLS.  It is reassuring that people are not prevented from having the Court of Protection review their detention due to unavailability of public funding.

This does, however, beg the question as to why almost a third of all s21A appeals by December 2010 were litigants in person.  It would be interesting to know whether these litigants were appointed as representatives of the detainee.  In their first report into the DoLS the Mental Health Alliance had expressed concerns that some supervisory bodies were deliberately avoiding appointing people who opposed a detention as representatives, purely on the basis of their opposition.  Thus it might be that some of these people have sought to oppose detention through the s21A appeal as a litigant in person.  There are regulations on the appointment and selection of relevant person's representatives under the DoLS, here.  One other alternative explanation is that people are struggling to find legal representation due to a shortage of specialist solicitors, or a lack of awareness of how to find them.

It would be useful if the Ministry of Justice could collect data on who is making an application to the Court of Protection under s21A, and the outcome of that application (variation, termination or continuance of the authorisation).

Last night’s Panorama – Anatomy of a scandal

Last summer I spent some time researching the abuse of adults with learning disabilities in Cornwall, to get a sense of the mechanisms that were – and weren’t – in place to pick up on this abuse and ensure it didn’t happen again. As I watched last night’s Panorama, showing institutional abuse of adults with learning disabilities in a locked ward near Bristol, I thought again about some of what I learned, and how it mapped onto what occurred in Winterbourne View.

Accountability of support staff

Whilst the program was airing, I watched some of the comments on Twitter streaming in. Charon QC, among others, expressed a hope they would face criminal prosecutions. I hope so as well. Something that shocked me about the abuse in Cornwall is that not a single person ever faced a criminal prosecution. I’m not sure the abuse there was so different to what we saw in the Panorama footage, in their investigation report the Healthcare Commission and Commission for Social Care Inspection wrote: 

...instances of poor or abusive care were recorded in personnel files, correspondence, and notes from investigations. These incidents included staff hitting, pushing, shoving, dragging, kicking, secluding, belittling, mocking and goading people who used the trust’s services, withholding food, giving cold showers, over zealous or premature use of restraint, poor attitude towards people who used services, poor atmosphere, roughness, care not being provided, a lack of dignity and respect, and no privacy. All those living on Lamorna Ward were subject to this type of behaviour but two individuals were targeted frequently.

I was interested in why no staff were ever prosecuted, so I made a Freedom of Information Act request for the police report. The request was initially refused – police reports into criminal investigations are rarely released under FOI – but I successfully appealed on the basis that the investigation concerned not just private individuals, but treatment of highly vulnerable individuals at the hands of NHS staff – agents of the state. You can read the report here. 

Looking through the report there seem to be several reasons why there were no prosecutions, many of which would not an issue in the Panorama case.  At the time of the Cornwall abuse investigation, the Mental Capacity Act 2005 had only just come into force, and so nobody could be prosecuted for the new criminal offence of ill treatment or neglect of someone who lacks capacity.  They could, however, have used s127 of the Mental Health Act in some cases.  I hope these are charges the police will look as using in relation to staff at Winterbourne View.  Primarily police in Cornwall looked at ‘ordinary’ offences like assault, which have a very short statute of limitations – 6 months.  I am not sure whether they were recorded as disability hate crimes; I hope they would be today.  When people are deprived of their liberty in care settings, when they have very profound communication problems, it may take many months, if not years, for incidents of abuse to surface, meaning prosecution within the limitation period can be much less likely.

According to the police report, the CSCI and Healthcare Commission were of very limited help in their investigations:

Obtaining the information HCC and CSCI had used in their investigation that resulted in the multi-agency report was challenging due to Data Protection issues. When eventually a small portion of information was provided, it was merely lists and very brief summaries of what had been obtained rather than copies of the documentation itself. Those lists were so heavily edited as to be virtually useless to the investigation. [7.14]

I’m no expert on the Data Protection Act, but I am surprised that Cornwall Partnership NHS Trust was able to share the documentation with the police but the regulator itself wasn’t.  The evidence the police based their investigation on came directly from the perpetrator organisation.

A second reason there were no prosecutions was a problem with the evidence obtained.  It would seem that the findings of an internal review by the trust, cited in the quote from the investigation report above, were an insufficient basis for a criminal prosecution.  In Panorama we saw staff documenting incidents; their reports bore little resemblance with the reality we had just witnessed, and yet these are the records that survive, and what inspections and investigations would be based on.  People who are subjects of abuse within the care system are usually not in a position to document or communicate what is happening to them.  Even when they are able to communicate what has happened, the accounts of people with cognitive disabilities are often discredited – even by those who love and care about them.  Simone’s parents chose to believe that her allegations of abuse must be false, because what she was alleging “wasn’t allowed”.  There is a serious danger that the police and CPS and even juries will take that attitude as well.  In a case in 2009 the CPS chose not to prosecute a serious assault on a man with mental health problems, because a psychiatric report confirmed that he could – at times – have a distorted perception of events.  The CPS failed to ask the psychiatrist to consider whether on this occasion his perception of events was distorted.  The judge found that their decision not to prosecute had been irrational, but furthermore that in itself the decision not to prosecuted had violated his Article 3 rights to protection from inhuman and degrading treatment.  To have one’s account discredited purely on the basis of your diagnosis is also a form of inhuman and degrading treatment.

I have no idea what steps Cornwall’s police and the CPS took to check whether people could offer reliable testimony.  In many cases, however, people will not be able to no matter how much support is in place.  In one particularly sad extract from the Operation Apple report, officers conclude that a man who alleges he was raped probably has been subjected to a serious assault, but they feel they can’t extract the truth from fantasy in his bizarre account of it.  Difficulty evidencing criminal acts is one reason why we should consider people who are deprived of their liberty, who have particular difficulties communicating, especially vulnerable to abuse.  Systems should be in place to ensure we are not reliant on criminal prosecutions as the only effective deterrent, because even with the best efforts of police and CPS, obtaining evidence to secure prosecutions can be extremely difficult.  In Winterbourne View, staff clearly felt entirely immune from police enquiries; at several points they taunted residents that the “police don’t care”, or they would tell the police that the residents hit them first.  I wonder, if the Panorama team had not been there, what the police would have done if somehow Simone or her parents had tried to alert them to what was happening.  How would they have weighed Simone's testimony against Wayne's?

One of the things that shocked me about the police report in Cornwall was how many acts that to the regulator were clear abuses, were not regarded as criminal acts by the police.  Just to take some examples:

The allegation in relation to (…V…) was that in 2005 he was restrained to prevent self-harm by strapping both hands to his wheelchair or his bed... Documentation relating to the care and treatment of (…V…) was researched and no criminal offences were identified. [8.9.1-2]

The bear hug technique and the lap restraint were approved methods of restraining a potentially violent person so that necessary medication could be administered... No criminal offences were identified. [8.33.4-5]

The allegation in relation to (...AA...) is on either 11 or 12 February 2006 he was given a cold shower by unknown member of staff...2 An incident list clearly shows the challenges staff have whilst attempting to care for (...AA...). He has been violent, assaulted staff and other service users, probed his own rectum causing bleeding, self harmed by hitting himself and spat out his medication... No criminal offences were identified. [8.14.1-3]

Several things stand out reading this.  The first is that the police report emphasises over and over again how ‘challenging’ the residents were to care for.  Recalling the Panorama footage, the staff there emphasised in the incident reports documenting restraint how ‘difficult’ the residents were being; it is reports like these that formed the basis of the Cornwall investigation.  The police and CPS seem to have uncritically absorbed this narrative and run with it.  The second is that they clearly fail to apply the test of s6 Mental Capacity Act 2005 of when restraint is appropriate.  The Act had only just come into force at the time, but today I hope that police realise it simply isn’t good enough to say that someone was restrained because they wouldn’t take their medication: was the act of restraint necessary and proportionate to the likelihood and severity of the harm that would have been suffered otherwise?  My fear is that police and the CPS may not be skilled and knowledgeable enough of either the MCA or social care more generally, to be able to assess what constitutes a serious risk, a proportionate response or ensuring that all other less restrictive avenues of action have been exhausted first.  I hope they take expert advice when investigating matters like this; and I hope that advice does not come from the self-same providers that they are investigating. 

It surprises me that the police and CPS in Cornwall didn’t view restraining someone for 16 hours a day in their wheelchair a form of assault, especially when care experts regarded this as unnecessary and abusive.  It surprises me they didn’t regard forcible cold showers a form of assault as well.  Last night’s Panorama, showed Simone being given a cold shower, then drenched again outside in freezing weather, then tormented in a cold shower yet again.   I found myself wondering whether the police and CPS might have reconsidered their decision that a cold shower did not constitute a criminal act if they had seen the footage.  Part of the problem is that misperceptions of what can be legitimately done of in the name of care may distort what would clearly be an assault if it happened to somebody without a disability in their own home.  Perhaps even if it is accepted staff acted unlawfully, there is a tendency to interpret events as misguided acts of care, without the mens rea for a criminal prosecution.  Many of the worst abuses in Cornwall seem to have been accepted as par for the course in a care settting by the criminal justice system.  My hope is that the availability of television footage showing the distress of residents will bring home to investigating officers in Bristol that they are humans, that they feel distress, just as anyone else would if they were subject to the same treatment.

Criminal prosecutions aren’t the only way to hold people to account, however.  My understanding is that several staff members were dismissed in relation to abuses in Cornwall, but at the time the Safeguarding Vulnerable Groups Act 2006 was not in force and so those staff were not referred to the ‘POVA register’.  They may well still be working in care.

Accountability of management

The danger with Winterbourne View, is that we regard the matter as resolved because the police have stepped in and arrested four care staff.  As Fighting Monsters wrote:

This was not about 4 rogue members of staff. This was about an environment that allowed them to abuse and for that the senior management up to the Chief Executive should be responsible.

There are several ways in which the management structure could – and should – be held accountable.  For some reason, the CPS and police in Cornwall decided not to investigate corporate neglect (see paragraph 7.31).  I'm not sure whether that could be pursued in this case.  One crime that managers almost certainly could have been prosecuted for in Cornwall was running an illegal, unregistered, care home (s11 Care Standards Act 2000).  The CPS and police left this decision up to CSCI, who – as far as I can make out from my FOI requests – never pursued a prosecution.  I’ve never got to the bottom of why they didn't, although I did manage to get them to release hundreds of pages of correspondence on this matter which I’m still working my way through (which I'm happy to share, if anyone wants a copy).

I think it unlikely that no other staff will be dismissed as a result of the Panorama footage.  I hope that nursing managers are referred to the Nursing and Midwifery Council for disciplinary action, and they will give serious consideration to whether they should be struck off.  Personally I find it hard to see how they could be permitted to manage services again – especially the night manager who stood by and watched Simone being abused by staff – but they still deserve due process, and we shouldn’t pre-empt what the standards board will find.

One senior nurse left the organisation and raised concerns, but where were all the other whistleblowers?  It’s something that bothers me in all these institutional abuse and neglect cases, from Cornwall through the Mid-Staffordshire Inquiry to the most recent revelations of doctors having to prescribe water to ensure elderly patients had enough to drink.  Why are doctors prescribing water, and not alerting the regulator?  We know that whistleblowers have a hard time being heard, and may suffer persecution for raising the alarm.  Senior nurse Terry Bryan repeatedly alerted managers and the CQC to abuse at Winterbourne View and he was ignored.  A few years ago nurse Margaret Haywood filmed neglect abuse in the Royal Sussex Hospital for another undercover Panorama episode; she was struck off by the Nursing and Midwifery Council.  Whistleblowers are meant to be protected by the Public Interest Disclosure Act 1998, but one in three nurses who have raised the alarm said it did lasting damage to their career.  Like a lot of support workers, I’ve worked in some truly awful places – albeit none as horrendous as Winterbourne View.  I once worked in a live-in care setting where I had serious concerns about the care quality and management; I and other staff who kicked up a fuss lost not only our jobs but our homes.  I worked in another service shortly after two managers had recently been suspended for very serious allegations; I asked staff why they hadn’t alerted the regulator or the press.  The regulator had only acted after years of them expressing concerns, they said, and they were too scared of the place being closed down and all of them losing their jobs to go to the press.  I have a certain amount of sympathy for staff in this position, but a part of me does wonder whether there shouldn’t be a serious attempt by professional bodies to discipline staff for failing to alert regulators and managers to abuse and neglect.  Of course, this only works if the regulatory bodies take action.

Staff Training

On Twitter and blogs, lots of people are quick to say that we need more training for staff (e.g. this piece).  Staff at Winterbourne View apparently had a week's training; that's more than most places I've worked at have provided.  Decent training is a necessary minimum, but it is just that – a minimum, and we shouldn’t regard it as sufficient.  A few days training (I know I’m being generous here by suggesting it might even be a few days) is pretty unlikely to change the practices and attitudes of the Wayne’s and Graham’s of this world.  In a research paper on training in social care, Lindsey Pike and others point out:

"Individuals on their own cannot make training effective; they need to work within systems that promote the transfer of their learning to practice through effective workforce development structures."

In the case of Wayne and Graham, what training they would have had just appeared to enable to them to cover their tracks more effectively.  It allowed them to know what discourses would mitigate their actions: what to write in incident reports, what to tell management.  They knew, perfectly well, what they were and weren’t allowed to do.  The Panorama footage was a fascinating study in the maintenance of double standards in appearance; the appearance of what they think a support worker “should” look like (no doubt gleaned from training and management speak), and the appearance of a figure of power and authority, inspiring fear in residents and other staff.

Accountability of the regulator

Training and documentation alone is not enough.  What is needed is mutual scrutiny of staff practices, and scrutiny from above, at every stage.  Opportunities for scrutiny by people equipped with the knowledge and confidence to challenge abusive and poor practice, and create a real pressure to improve.  Shortly after the Cornwall abuse scandal, the Healthcare Commission conducted a national audit of specialist services for people with learning disabilities.  They found serious abuses in another service, Sutton and Merton.  Everywhere else they found highly restrictive and institutional environments, and they called the report A Life Like No Other.  In a fascinating comment from the regulator, they complained about a lack of external scrutiny of these services, and recommended increased referrals to advocacy services.  A few years later in 2009 the CQC went back to a random sample of services; they found much the same.  Following the Panorama program, Minister for Social Care, Paul Burstow, today authorised a series of random unannounced inspections of services.  I can’t help but feel cynical about this; it feels like an exercise where we can reassure ourselves that no Cornwalls or Sutton and Merton’s are lurking, without addressing the underpinning issues causing these problems to recur every few years.  I don't think I'm the only person to wonder what will be different the third time around.

The services in Cornwall were not inspected at all, as the managers had not registered them.  Police felt that had they been registered, events might not have got as far as they did.  Notably, Winterbourne View was registered, it had been inspected within the last two years (see report).  Ian Biggs, the CQC regional director interviewed by Panorama, commented that it was difficult to pick up on warnings from talking to staff and residents, and reading documentation.  I wonder whether they spoke to residents in private, away from staff – I know many care inspectors do not, although it’s a practice the Mental Health Act Commissioners believe is very important.  I've even heard of care inspectors handing out surveys to care home management to give out to staff and residents, and collect back in again, offering ample opportunity to select the most pliant individuals and weed out critical remarks.  But even away from staff, many residents may have been unable to explain what was happening, or been too fearful of reprisals.  How can a regulatory system get around that?  Well, by speaking to staff in private perhaps.  Somewhere, among the Waynes and the Grahams there must have been someone with some kind of awareness that all was not right.  By ensuring staff are aware of the appropriate channels for expressing concerns, and then ensuring they act on them.  This requires that staff and services know and trust the inspectors, which in turn may depend on more human contact than a brief biennial inspection.

Of course, the frequency with which a service is inspected will increase the felt presence of the regulator, and the likelihood that sooner or later warning signs will not be picked up.  Places of detention can be like black holes for warning signs; if residents are detained, and visitors are not allowed in, if all channels of communication are blocked or controlled by staff – who is going to raise the alarm?  In my view, it is extremely concerning that the frequency of inspection has seriously declined over the last decade – and especially over the last year.  A recent FOI I put into the CQC showed that expenditure on care regulation in general has declined over the last five years, but beyond this, the proportion of CQC expenditure spent on inspections has itself declined.  In fact, regular inspections of places of detention is not just desirable, it is part of our treaty obligations under the UN Optional Protocol on the Convention Against Torture.  OPCAT recognises, at an international level, that preventive visitation is essential to ensure that people in places of detention like Winterbourne View are not subjected to inhuman and degrading treatment.

Regulation relies upon obtaining information and acting upon it.  In many ways the fact that shocked me most in the Panorama program was that a former nurse at Winterbourne View had alerted the CQC to the abuse there three times, and they had not acted.  In my view there can be absolutely no justification for this.  It is simply not enough to say that this was a ‘misjudgment’ on the part of the CQC.  I would like to see Paul Burstow call upon the CQC to conduct a full internal inquiry into how their supposed risk-responsive systems could have missed this.  I would like the results to be made public.  In my naivety I had believed that their new ‘responsive’ methodology would have investigated any allegations of abuse automatically, particularly for such vulnerable patients, leaving no room for 'judgment' (and hence 'misjudgment') at all.  I am disturbed to wonder how many other alerts they have ‘misjudged’ and not investigated as a matter of course.

Ordinarily in the fallout from these abuse scandals, the focus is on the individual staff members and the management of the organisation.  Some broadsheets note that the scandal was a symptom of regulatory failure, but few take this up further with any real enthusiasm (the Independent and Community Care being  exceptions).  Beyond public censure, what incentives does the CQC actually have to improve?  It’s pretty unlikely anyone could, or would, bring a successful civil action against them for failing to ensure their rights were protected.  You’d have a much greater chance of success going after the abusing organisations, and it would be much easier to show direct accountability.  My personal view is that the CQC’s failure to act on alerts from Winterbourne View staff is a major failure in its duty to uphold the Article 3 rights of residents; it is, in itself, a direct breach of their positive obligations under s6 Human Rights Act.  But who could hold them to account for this, and how?  I’m not sure, and I’m not sure how without some kind of pressure on them to improve their practices and increase inspections the overall situation of a crumbling regulatory system will improve.  And yet, ensuring that the regulator takes seriously its duty to uphold the rights of care service users, is the very keystone of the entire system.

Where was everybody else?

One last thing that bothered me, that Panorama didn’t go into, was where were all the other professionals?  Fighting Monsters raises this question as well.  People don’t just end up in places like Winterbourne View.  Someone referred them there, and someone was paying for it.  Undoubtedly everyone on that ward was deprived of their liberty, but were they detained under the provisions of the Mental Health Act, the Mental Capacity Act Deprivation of Liberty Safeguards, or just unlawfully detained?  It’s not a question that’s taken up, but from a legal perspective it’s very important.  If they were unlawfully detained, perhaps police should look at charges of false imprisonment for the management, and it should almost certainly be explored in any civil claims.  If they were detained under the DoLS, who wrote the assessment that detention was in their best interests?  Did they place conditions upon the detention, and ensure they were upheld?  Was this assessment lawful, or should families be looking at issuing proceedings for unlawful detention against those who commissioned the care? [Update 07/06/2011: Roger Hargreaves emailed Vern Pitt at Community Care with his view - which is that the likelihood is they should have been under the MHA, because of the 'primacy principle' that MHA must be used wherever possible. I had to double check, as I'd always been under the impression MHA detention required 'objections', but that was incorrect.  Paragraph 4.18 of the Mental Health Act Code of Practice suggests that DoLS should be used if a person isn't objecting, but Paragraph 4.19 says that if they would have objected, if able to do so, they should be treated as if they are objecting.  I can't imagine why anyone wouldn't object to being at Winterbourne View]

Towards the end of the program Mansell calls for locked wards like Winterbourne View to be closed down.  I don't disagree with him, but I would caution that much of the abuse in Cornwall occurred in supported living settings.  Often what distinguishes a  place of detention from true supported living is not its legal status, but the practices of staff.  This is why I have expressed concern that the courts are overly preoccupied with surface appearances of 'normality' in determining whether someone is deprived of their liberty, and that no deprivation of liberty safeguards are available in supported living.  My preference would be towards developing Article 5 so that it recognises the intrinsic vulnerability of people who are subject to high levels of supervision and control of staff, whatever the setting.

People who lack mental capacity to decide where to live, who are moved to new accommodation or detained under the DoLS, should be entitled to an Independent Mental Capacity Advocate (IMCA).  People detained under the Mental Health Act have rights to Independent Mental Health Advocates (IMHA’s).  Were these referrals made?  And if they were, were advocates aware of conditions on the ward?  In many ways advocates might have been better placed than inspectors to develop longer term relationships with patients, to gain their trust, and hear what was happening.  Unlike commissioning bodies (and arguably the regulator), independent advocates have no vested interest in painting a rosier picture of ward life than might have been the case.  They aren’t a failsafe guarantee against abuse, but certainly I would have thought they would be better placed than many to identify it and raise the alert.  And where were the social workers, and Clinical Psychologists, and psychiatrists, who we must assume were having some kind of contact with patients?  Were they really oblivious to what was happening?  I can believe quite easily that professionals had very limited contact time with patients and were unable to pick up signs, but I suppose I can’t help but feel that somehow somebody, somewhere, should have noticed something was amiss.  It rather undermines the claims of the mental health professions if doctors and psychologists cannot pick up on behaviour that is indicative of being abused.

And what about family and community? Visiting family shouldn't have been kept at bay in visiting areas, what justification is there for preventing them from seeing the place where their loved ones are living?  Many families in the Panorama program spoke of a sense of exclusion from their children's care plans.  There is something that sounds romantic and old-fashioned about emphasising the importance of involvement with family in care provision, of keeping people in places where they have connections and roots.  Yet isolation from family and distance from home communities are common ingredients of abuse of all kinds - institutional, or cases like that of Steven Hoskin.  60% of people with learning disabilities are placed 'out of area' due to a shortage of services, how can family and communities be expected to look out for them in these circumstances.  Someone once commented to me that there's something very frightening about being in a situation where your only human contacts are with people who are paid to spend time with you, and you've got no real friends watching your back.

Even an adequate regulatory structure, even advocates and detention safeguards and whistleblowing procedures that were effective and protected staff from retribution, we would only be likely to curb some of the more horrific incidents.  It would not, of itself, have remedied the overwhelming sense of boredom, hopelessness and futility of ward life.  I have no hesitation in agreeing with the filmmakers that this was a major contributory factor to both the distress and ‘challenging behaviour’ of residents, and the terror inflicted upon them by staff.  Monsters are made, not born, and whilst I don’t want to mitigate what the staff did, their behaviour was in many ways congruent with a overarching and desolate ethos of care.  Of warehousing, of containment, of people reduce to ‘bare life’.  Care expert Jim Mansell recoiled in horror from the film, commenting that the staff had failed to regard the residents as people, as human beings like themselves.  Their acts arose from a failure of recognition.  Is this so very surprising, in the context of a care system that places little value on the very qualities that make us human: friends and family relationships; meaningful work; inclusion in the community; civic engagement?  To staff, they were just beasts to be kept alive and contained.

More reading
All the major newspapers have produced coverage of the program; for some it was their headline item. The Guardian, also a commentary by Keith Smith

• The Independent
• The Daily Mail
• The Telegraph

Community Care also has some excellent in-depth coverage, including discussion of the regulatory structure, a guide to whistleblowing, and a blog piece expressing concerns that there may be other situations like it.  And if you haven't read it already, blogging social worker at Fighting Monsters gives her view here.  And Connor Kinsella writes an interesting commentary here.  I also read a great post on the topic, asking many pertinent questions, by blogger Scottish Mum, here.

You can read the CQC's response to the program here.  The BBC has an article written by Panorama's undercover reported, describing his discomfort in watching the abuse.  I have to say, whilst I recognise the importance of the footage in asking serious questions about the care system and providing police with adequate evidence for prosecutions, I do feel uncomfortable thinking about what he stood and witnessed without intervention.

UPDATE (01/06/11): Paul Burstow has announced an investigation into the CQC and the local council, South Gloucestershire, and their actions in this affair.  I was interested to note that the CQC's extended press release gives  more detailed chronology: they were alerted to concerns by a member of staff in December, but had already been contacted by the local authority themselves in November.  They local authority were the 'lead safeguarding' team, but it took until February to set up a meeting.  The CQC did not contact the whistleblowing staff member to find out about the concerns in more detail, but acknowledge that had they done they would have followed up with an inspection of the hospital.

ANOTHER UPDATE (02/06/11): The government has announced that the Department of Health will not, after all, be conducting or commissioning an independent investigation into failings by the CQC and local authority; they will rely on the findings of internal investigations carried out by CQC themselves.  This decision has been criticised by Labour as a U-turn in 24 hours.  The National Care Association have written to the Minister for Social Care, Paul Burstow, asking for an inquiry into the wider role of the CQC beyond the issues as Winterbourne View.  Meanwhile Community Care have learned that the CQC may be taking enforcement action to close Winterbourne View within weeks.

Representing parents who lack litigation capacity - comments and corrections!

This is a follow up to my last post, prompted by discussions with Unity and Carl Gardner on Twitter and in the comments.  It relates to the EHRC's written submissions for RP v UK.

I'm not sure what the blog etiquette is for when you change your mind; whether one should go back and change the original post, put in a messy strike through and corrections, or just write another post...? In this instance I'm going for the latter since my change-of-heart is less of a neat U-turn than a 20 point turn in a narrow road.  I had written "There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment)." Unity makes this comment:

Para 77 - No real cause for concern. What that appears to document is the Official Solicitor informing RP of their opinion that she has a hopeless case and cannot, therefore, oppose the court for ethical reasons. OS's duty to act in RPs interests is bounded by ethical duties which cannot be overriden, even if this is not what RP wants.

Para 160 indicates that the court concurred with the OS's judgment and hence that he behaved ethically.

I think Unity is correct, and my initial reading was wrong.  On closer reading, I think it looks as if the OS may have made a best interests assessment, but part of that assessment included whether the case had a realistic prospect of success, which in turn required that the OS take a position on how the court was likely to view the best interests of the child.

On the new website for the Official Solicitor, there is an entire page devoted to how he acts on behalf parents who lack litigation capacity.  On this page are some documents setting out his standard instructions, and one relates specifically to how he represents parents during Children Act 1989 proceedings.  It's well worth a read if you're interested in this issue; section 3 describes in some detail the basis for his decisions.  As I had expected it to be (and hence why I was surprised by my initial reading of the judgment), decisions are supposed to be taken in the best interests of the protected party - in this case the parent - and not the child. This is what the OS says he takes into account in determining what is in the best interests of the protected party:

(1) the client's past and present wishes and feelings, the beliefs and values that would be likely to influence his or her conduct of the proceedings if he or she had capacity, and the other factors he or she would be likely to consider if able to do so; 

(2) the need, so far as reasonably practical, to permit and encourage the client to participate, or to improve his or her ability to participate, as fully as possible in decisions relating to the conduct of the proceedings;

(3) the need to respect the emotional bond between parent and child; and 

(4) the fact that the court will view the child’s welfare as the paramount consideration and apply the welfare checklist.

 He then goes on to state:

3.3 In formulating my submissions as guardian ad litem I would wish to present any realistic arguments and relevant evidence that may be available on behalf of (i.e. in support of) the protected party in relation to the issues before the court, whether these are issues of threshold or of welfare. The criterion is whether the point is reasonably arguable, not whether it is likely to succeed at trial. In relation to issues where there are no realistic arguments to be made it will almost always be more appropriate (although not inevitably the case) for me not to oppose, than to make explicit concessions on behalf of the protected party.

Although the EHRC make the point that the OS's decisions should be based purely on the best interests of the protected party and not the child, they don't cite or comment on the OS's own guidance.  And since the EHRC's role is not to take sides in this particular case, they can't be asserting that the OS's guidance was not followed in this instance.  So it may be that they have seen, and tacitly affirm, the OS's guidance, but then it's not really clear then why they are raising this point.  Perhaps it's just a general reminder to the court.  I'm sure, in any event, it's a point the government will bring to the ECtHR's attention!

I don't think that's quite the end of the story though, as it might be possible to argue that sometimes there are best interests grounds for the OS to bring cases even though he regards them as unwinnable.  Perhaps to prevent vulnerable parties seeking support in their cases elsewhere.  It would be a pretty tough case to argue, and in any case would presumably be a matter to be taken up more appropriately in the Court of Protection.  And I certainly don't think you could argue that the sole determinant in the best interests test should be the desires of the protected party; there would be very little point having the OS at all if his instructions simply mirrored their views.  It seems to me that the only really arguable point in this case therefore relates to the mental capacity assessment itself - and whether a mechanism should have existed for RP to challenge the appointment of the OS in the first place.

It's a really tricky issue, and I still don't feel quite comfortable with where I've arrived at on this. I'd be interested in anyone else's views, particularly anyone with experience in the family courts in similar circumstances.  I do feel the points the EHRC raise regarding the availability of community support are valid, and these would indirectly impact upon the winnabiltiy of cases - but the OS cannot be expected to present a case whose winnability depends upon resources that are not in reality available.  Unity is right again when he says "any challenge to the Local Authority's assertion that they would be unable to provide RP with the care necessary to allow her to raise the child is a separate matter which necessarily would have required separate litigation."  This may mean that the ECtHR will consider that there were other avenues available domestically that were not taken up, and will therefore not consider this aspect of the matter.

Strategic litigation by the EHRC

The Equality and Human Rights Commission was established in 2007 to promote and enforce equality and human rights laws in the UK.  It replaced three well respected predecessor bodies: the Racial Equality Commission, the Equal Opportunities Commission and the Disability Rights Commission.  The EHRC has powers to conduct formal inquiries, to bring judicial review proceedings to prevent breaches of the Human Rights Act 1998, to undertake legal policy work including briefing ministers and parliament on human rights issues in draft legislation.  It also has powers to intervene in particular legal cases, where it feels important equality or human rights principles are at stake.

I wrote to the EHRC some time back asking whether it might consider sharing its written submission in the Court of Appeal hearing of P & Q v Surrey County Council (on appeal from the High Court ruling MIG & MEG).  The EHRC was under no legal obligation to share these submissions, as documents relating only to court proceedings are subject to an exemption under s32 Freedom of Information Act 2000.  However, the EHRC didn't only share it's submissions in P & Q with me, but also some very interesting written submissions in several other cases relating to mental health, mental capacity and human rights.  It's a common source of frustration for legal researchers that we have little access to court documents beyond the published judgment, so it's a wonderful opportunity to see some of the arguments that were put before (or will be put before) the courts, but which may not have been addressed or mentioned in the final judgment.  It's also a great opportunity to read some high quality legal reasoning produced on behalf of the EHRC.  I am very grateful to the EHRC for sharing them with me, and also pleased they're happy for them to be shared more widely on this blog.

EHRC written submissions in P & Q (MIG & MEG)

The EHRC intervened in the P and Q case at the Court of Appeal.  I've written previous posts about the judgment in the High Court, and the Court of Appeal, so I won't repeat any details of the case here.  As I understand it, permission to appeal in the Supreme Court is being sought (the outcome on permission should appear here in the next few weeks/months), and I hope the EHRC will also intervene at that point.

You can read a copy of the written submission here.  It was drafted by Paul Bowen at Doughty Street Chambers.  Bowen has been involved in lots of very high profile and important cases, including the Bournewood judgment itself and another important deprivation of liberty case JE v DE (2006).  In the Court of Appeal ruling, it was held by Lord Justice Wilson that absence of objections by the relevant person pointed away from their being deprived of their liberty [25].  The EHRC submission prepared by Bowen explicitly cautioned against this approach:

P's lack of objection to remaining may be a consequence of the measures placed upon her and her particular suggestibility or other vulnerability. This is one reason why it does not follow that, because P's objections are relevant in determining there is a DOL, P's lack of objection is also relevant in determining there is no DOL. P's lack of objection may be mere acquiescence in the face of the restrictions placed upon her, which is a reason for concluding those restrictions do give rise to a DOL rather than the opposite

I find this argument very attractive.  I and others have expressed concerns that the Court of Appeal ruling could leave people with very limited communication abilities without the protection of the safeguards.  Bowen's argument takes this one step further.  Even if people are physically able to communicate objections, the effect  of the restrictions placed upon them may be such that they acquiesce to them under pressure, and feel mentally or emotionally unable to express dissent.  Sociologist Erving Goffman called this effect 'institutionalisation', or - more dramatically - 'mortification of the self'.

John Wadham is the Group Legal Director at the EHRC, and in addition to the written submission prepared by Paul Bowen he drafted his own witness statement, which you can read here.  He expressed particular concern that the deprivation of liberty safeguards framework did not extend to children (MEG, now Q, was 17 at the time of the High Court hearing), and the potential for abuse where there is no external scrutiny of the treatment of vulnerable incapacitated children.  The Commission proposed an alternate procedure for children, whereby if the local authority has reason to believe deprivation of liberty may be taking place, they should conduct an assessment and appoint an advocate.  If either the local authority or the advocate do not find the restrictions proportionate, they should apply to the Court of Protection for a ruling on its lawfulness.  The Court of Appeal made no comment on this expression of concerns; perhaps it will be taken up by the Supreme Court.

Written submission in A Local Authority v A (A Child)& Anor [2010]

This was another extremely important case in the High Court, heard by Lord Justice Munby.  In A Local Authority v A Munby LJ was asked to determine whether an adult (C) and a child (A) with Smith-Magenis Syndrome, who were cared for by their parents in the family home, were deprived of their liberty.  A and C required constant supervision to keep them safe, and their parents locked them in their bedrooms at night.  According to expert testimony in the judgment this was the best way to ensure that A and C were kept safe at night whilst their carers got the sleep they needed to continue to support them at home.

The ruling is an extremely important one, I have not yet written about it here because my own views on it are still evolving and frequently change.  It raises such complex issues around the proper scope and purpose of Article 5, the relationship between families and the state, the very meaning of 'liberty' and the purpose of any safeguards to protect against arbitrary infringements.  Munby LJ sets out procedures to be followed by local authorities if they suspect that a person may be deprived of their liberty in the family home, creating a new aspect of the doctrine of positive obligations under Article 5.  It has to be said the judgment is rather less clear as to what might constitute deprivation of liberty in the family home.  Munby LJ emphasises that restrictions that promote a person's welfare, in the context of a loving family home, are far removed from the paradigm case of deprivation of liberty [150].  The difficulty that some of us have struggled with is how you resolve this with the provisions of Schedule A1 that say restrictions upon liberty, and deprivation of liberty, may only be permitted in a persons' best interests.  I suppose the problem that Lord Justice Munby and the courts more widely would have struggled with had they found otherwise is the extreme political toxicity of saying that parents who are doing their best to support family members with profound disabilities and challenging behaviours are depriving them of their liberty by keeping them safe.  One can only imagine how certain quarters of the press might react to dedicated carers having to seek authorisation from the court to "detain" those they care for, and perhaps with some reason.

In any case, here is the EHRC's submission to this case.  Again, it was drafted by Paul Bowen.  I notice that in finding that the state has positive obligations to protect people from violations of their Article 5 rights by private parties, Munby LJ has drawn heavily from Bowen's submission.

RP v United Kingdom

The EHRC also shared with me their written submission in a case that has yet to be heard before the European Court of Human Rights: RP v UK.  The case is one that has a certain amount of notoriety in the legal world, because it resulted in a Court of Appeal judge, Sir Nicholas Wall (now head of the family courts), heavily criticising the actions of John Hemming MP for his involvement in the case as RP's McKenzie friend.  You can read the somewhat infamous judgment; some of the exchanges reported are quite revealing  regarding the relationship between Hemming and the courts, particularly in the light of the events of the last few weeks.  The case concerned a young woman called RP, whose baby was subject to child protection proceedings.  As a result of a mental capacity assessment, which Hemming and RP herself dispute, RP was found to lack the capacity to conduct litigation in the proceedings and the Official Solicitor (OS) was appointed to conduct her case as a litigation friend of last resort.  The final outcome of the court proceedings was that RP's child was placed for adoption.  However, separate proceedings were brought by RP herself as a litigant in person, assisted by John Hemming as her McKenzie Friend, on the basis that her right to a fair trial under Article 6 was violated.  There is something extraordinary in the fact that an appeal could be brought by a litigant in person, when she was said to lack the mental capacity even to instruct a solicitor.  However, the court felt that there were important matters of principle at stake, so the appeal was allowed.

In thinking about this case it would be very easy to get distracted by a senior judge castigating an elected member of parliament.  It would also be very easy to get distracted by some of the more bizarre claims made by John Hemming reported in the judgment.  However, there are elements of the case that do give some cause for concern.  There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment).  Perhaps it's because I'm more familiar with Court of Protection cases than the family courts, but it did strike me as odd: I would have thought that the role of the OS was to champion RP's rights and her best interests, and it is up to the local authority to make the case on behalf of her child's best interests.  It seems that the EHRC were also concerned about this aspect of the case, as they have decided to intervene in a legal challenge to the judgment at the European Court of Human Rights.

The EHRC's written submission to the Strasbourg Court expresses concern on several grounds.  The submission is drafted by Helen Mountfield from Matrix Chambers; Mountfield was involved in the case YL v Birmingham City Council, concerning whether care homes were 'public authorities' bound by the Human Rights Act.  The EHRC argued that families with parents with  learning disabilities are not offered adequate support to care for their children themselves before the commencement of child protection proceedings, and that this might be in breach of their Article 8 rights.  They cite a range of evidence that parents with learning disabilities are poorly supported in the community.  I have some limited experience of working in a family assessment centre that assessed some parents with learning disabilities for child protection proceedings; I have to say I saw little to refute the EHRC's concerns about the amount of support available in the community to parents with learning disabilities - but they may have been isolated examples.  It would be interesting to see whether the European Court of Human Rights is prepared to extend the positive obligations of the state in this direction, given it would certainly place a significant financial burden on the public authorities who would be in a position to offer that support.

The second grounds for concern raised by the EHRC are regarding the role of the OS himself.  Undoubtedly the OS plays an extremely important role in upholding the rights of people who are unable to conduct litigation; there are many cases I can think of where the OS's intervention has upheld the most fundamental of rights on behalf of people who were unable to do so for themselves.  These include a case where a hospital had actually begun to withdraw treatment from a patient without seeking the Court of Protection's determination first; the OS's intervention meant that he then went on to make some recovery.  The Steven Neary case being fought this week in court is, in no small part, down to the work of the OS.  The OS also acts on behalf of children, and I wonder if this led to some blurring of the boundaries in this instance, where the OS appeared to take the child's best interests into account.  The EHRC express concerns that this was a breach of RP's own Article 6 rights:

...the case they put forward must be focused solely on the needs and wishes of the parent. That is not to say that the litigation friend cannot put forward a case which departs from the case which would be advanced by the learning disabled persons if they were representing themselves. It may be that the Official Solicitor does not consider that case to be in his or her best interests. But the focus should be on that person’s interests, alone. It is not the role of the Official Solicitor or other litigation friend to balance the interests of the parent and the child. If and to the extent the parent is represented by a litigation friend who seeks to present to the court an opinion as to what is in that person’s best interests “balanced” with what is in the child’s welfare, there is a breach of Article 6 and/or Article 8 and/or Article 14 ECHR. The litigation friend’s sole role is to promote the best interests of the person for whom they are appointed. Promoting the child’s interests is the role of the child’s legal representative, and deciding on whether the best interests of the child and the interests of the parent are opposed is the duty of the court.

A third area of concern raised by the EHRC is that there is no mechanism to displace the Official Solicitor:

[22] ...it should be recognised that litigation capacity can fluctuate or alter. Loss of litigation capacity is a very serious a matter. So where, as here, there is a mechanism whereby an official litigation friend can be appointed against the litigant’s will, there should also be a formal mechanism prescribing the circumstances in which, the evidence upon which, and time or means by which, the litigant deemed incapable can apply to have that decision set aside. The absence of such a mechanism constitutes a disproportionate infringement of the right of access to a court protected by Article 6.

[23] Whilst the Commission casts no doubt upon the good faith of the Official Solicitor or any of the experts instructed in the present case, it considers it to be institutionally unsatisfactory for there to be no such formal procedure. Once a person has been declared to lack litigation capacity, under the present system there is no means of his reacquiring it unless the Official Solicitor or the solicitor instructed by him on behalf of the litigant considers that the litigant may have recovered the capacity. There is no procedure for the litigant him or herself to raise the question, or to seek a further expert’s opinion, and no obvious mechanism requiring a review where, as here, the litigant produces an ostensibly plausible report from a Consultant Psychiatrist who expresses the view that she does have capacity. '

To the possibility of litigation capacity fluctuating or altering, we should probably add that opinions on whether a person has litigation capacity may - at the borderline - be a matter of dispute.  In a recent case V v R (2011) the Court of Protection was asked to decided whether V had litigation capacity.  Her mother doubted  that she did, whilst the defendants (perhaps unsurprisingly) felt that V had capacity to run her case against them.  Once it has been determined that a person lacks litigation capacity there seems to be no straightforward mechanism to displace the OS if they are acting on their behalf.  In cases as contentious as child protection proceedings, one can see how this can lead to discord between the parent and their legal team, and a feeling of powerlessness and perception of injustice. This sense of powerlessness could leave vulnerable people inclined to seek less appropriate sources of support.  According to the admissibility decision in Stanev v Bulgaria, the UK may be in the minority of Council of Europe states in having no legal mechanism whereby people deprived of legal capacity can apply directly to the courts for discontinuation of the measure (see paragraph 78).  I understand that the research this claim was based on was undertaken by the ECtHR itself; I have contacted them to ask for a copy of the research report.

Robert Seal v United Kingdom

I am ashamed to say I had not heard of this case before the EHRC shared their submission to the ECtHR with me.  The case concerns a provision of the Mental Health Act 1983, s139, which in requires detained patients to seek the permission of the High Court before bringing any civil case "in respect of any act purporting to be done in pursuance of" the Mental Health Act.  Robert Seal claimed he had been prevented from bringing a case against the police for unlawful detention as a result of the provision meaning that he was out of time.  In Seal v Chief Constable of the South Wales Police [2007] in the House of Lords, Lord Bingham commented:

Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seal's, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by sections 141 of the 1959 Act and 139 of the 1983 Act to those whose very important and often difficult task it is to care for the mentally ill.

Baroness Hale and Lord Woolf dissented from the decision.  The EHRC's submission was written by David Wolfe at Matrix Chambers; Wolfe has been involved in several important human rights cases including the right to treatment case concerning 'baby Charlotte'.  The Commission argued that s139(2) created a barrier to justice that was not a proportionate interference with the Article 6 rights of detained patients, commenting that it 'treats disabled persons as second class citizens without any justification'.  The ECtHR pronounced its judgment in December 2010, where it found that Seal's Article 6 rights had not been infringed.  The basis for the court's ruling appears to be primarily that Seal did not provide an explanation for why it took him from 1997 until 2003 and "the very eve" of the expiry of the limitation period, to commence proceedings against the  police.  In their view, Seal had been unable to bring his case not as a result of this measure, but the unexplained delay on his part in bringing a claim.  The court did not, therefore, give extensive consideration to whether the measure itself was discriminatory and a potential infringement of the Article 6 rights of detained patients more generally.

The future of strategic litigation by the EHRC

The government is currently consulting on reforms to the Commission.  You can read more about the government's proposals and the EHRC's response to them here.