rightsinreality

Thoughts on the crossroads of law, politics and society – for when 140 characters just won't do. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

New case law updates on disabled children’s rights

Quick post (first for some time) to flag the new case law updates published by the Council for Disabled Children with its Summer Digest. These will hopefully be of interest to disabled young people, families and professionals.

The first covers two Upper Tribunal appeals brought by Hillingdon and Buckinghamshire. Both appeals considered the appeal rights for young people (aged 16-25) and the approach to be taken where a young person lacks capacity to bring their own appeal. The Buckinghamshire decision gives important guidance on the meaning of ‘education’ for young people.

The second is about another important Upper Tribunal decision (this time in an appeal by Staffordshire) which gives clarity about school transport entitlements for young people. It is important for young people and families to note the conclusion that the Tribunal cannot resolve disputes in relation to school transport and that the correct remedy is judicial review.

The third concerns a successful human rights claim against Kent in the context of care proceedings. The judgment suggests that serious failures to comply with the duties owed to disabled children under the Children Act 1989 may result in breaches of the Human Rights Act 1998, which may in turn lead to damages being awarded.

All three updates are themselves summarised in the main CDC Digest (see p14 onwards).

Safer homes for disabled children – crowdfunding cases for disabled children’s rights

Disabled children need safe and suitable homes – but with the housing crisis in parts of the country it is unsurprising that many disabled children have neither. The families of two disabled children (M and A) are challenging Islington council for failing to provide them with accommodation where they will be safe from falling and have sufficient space to meet their needs.

The challenge failed in the High Court. In particular the Judge held that the duty to co-operate between housing and children’s services in section 27 of the Children Act 1989 did not apply to ‘unitary’ authorities, for example London councils. Secondly the Judge held that the failure to put in place a child in need plan for M or A was not unlawful – despite the clear terms of the statutory guidance requiring such plans. Both these findings may reduce the protection of the Children Act scheme for disabled children if left unchallenged.

To their credit M and A’s families are willing to carry on the fight to the Court of Appeal. The issues their cases raise are obviously of very wide importance, potentially affecting thousands of families with disabled children. As such their legal team has worked with the organisation Crowdjustice to see if money can be raised from the community. The initial target is 3,000 pounds, which will allow the appeal to proceed to the next stage.

In my view the attempt to crowdfund M and A’s appeal is hugely significant. If it works in this case it can work in other cases – and be an answer in the right cases to the problems caused by the restrictions on legal aid.

Please consider supporting this important appeal by donating through Crowdjustice Please also spread the link throughout your networks.

For information on disabled children’s rights to housing see chapter 7 of the second edition of Disabled Children: A Legal Handbook. The section of this chapter in relation to accessing suitable housing for disabled children and families was written by M and A’s solicitor Rebekah Carrier.

Disclaimer – I work closely with the legal team for M and A. However I am not instructed on this particular case.

Can local authorities lawfully close all their children’s centres?

This post is prompted by recent reports that some local authorities are considering closing all their children’s centres in this round of cuts. See by way of example this recent article by Polly Toynbee.

There is of course a ‘sufficiency’ duty in relation to children’s centres, found in section 5A of the Childcare Act 2006 (inserted by an amendment in 2009). Sub-section 1 of section 5A states that:

‘Arrangements made by an English local authority under section 3(2) must, so far as is reasonably practicable, include arrangements for sufficient provision of children’s centres to meet local need’.

Section 3(2) (to which section 5A(1) refers) says that ‘The authority must make arrangements to secure that early childhood services in their area are provided in an integrated manner which is calculated to (a) facilitate access to those services, and (b) maximise the benefit of those services to parents, prospective parents and young children’.

A ‘children’s centre’ is defined in section 5A(4) as ‘a place, or a group of places (a) which is managed by or on behalf of, or under arrangements made with, an English local authority, with a view to securing that early childhood services in their area are made available in an integrated manner, (b) through which each of the early childhood services is made available, and (c) at which activities for young children are provided, whether by way of early years provision or otherwise’.

Despite the overly complex drafting, it seems clear that there is a duty on English local authorities to have sufficient children’s centres, being places managed for or on behalf of a local authority to provide integrated early childhood services and activities for young children. These centres must physically exist, i.e. not simply be ‘virtual’ centres (a network of services without a physical centre).

The duty in section 5A(1) is though subject to an important qualification. The duty must be carried out ‘so far as is reasonably practicable’. This begs the question – can a local authority which intends to close all its children’s centres say that it is not ‘reasonably practicable’ for it to operate any centres?

It may well be that this question is tested in court. My provisional answer to it is ‘yes in principle’ – but the authority would need to have:

  1. Understood the local need for such centres
  2. Considered what level of provision would be sufficient to meet that need
  3. Analysed to what extent it is reasonably practicable for it to make that provision, given the reduction in its overall resources and other pressures on its budget
  4. Complied with its wider public law obligations, for example the public sector equality duty in section 149 of the Equality Act 2010 and the duty to have regard to the need to safeguard and promote the welfare of children in section 11 of the Children Act 2004. These duties are considered in my general blog post on legal issues relating to cuts.

It may be that local authorities could find a way through this process such that it would be lawful to reduce their level of children’s centres to zero, though I have my doubts. It would seem to require a local authority to justify why the other pressures on its budget are such that it cannot afford to operate even a single children’s centre. If the local authority is spending anything above the minimum required to meet its statutory duties in other areas (for example, collecting the bins) this may prove difficult. It is important that the wording is ‘so far as is reasonably practical’ – emphasising that the local authority should go as far as it reasonably can to provide sufficient children’s centres to meet local need.

The law requires local authorities to have regard to the need to safeguard and promote children’s welfare when tough spending decisions are made. What is clear is that a local authority which simply says ‘we are closing our children’s centres because our budget has been reduced’ will not have complied with the required process and would in my view be vulnerable to legal challenge.

If the section 5A(1) duty simply required the provision of ‘sufficient’ children’s centres then it is obvious that the answer to the question in the title of the post would be ‘no’. However Parliament has chosen to qualify the duty by reference to ‘reasonable practicability’. We may well see how the courts treat this qualification relatively shortly after local authority budgets are set for the next financial year, if decisions to close all their children’s centres are indeed taken by some local authorities. I hope though for the sake of the children and families affected that this question never needs to be answered by the courts.

Legal Essentials for Advocates and Activists, Manchester, 9 Feb 2016 (New Date)

A quick post to say that I’m running ‘Legal Essentials for Advocates and Activists‘ training with the Public Law team at Irwin Mitchell in Manchester on  9 February 2016*.

The training is aimed at non-lawyers who need to use the law to advocate for individual clients and / or for wider social change. Some of the key topics covered will include:

  • How to make real the rights in international conventions – e.g. children, disability
  • What the ‘common law’ is, and how some key concepts – rationality, fairness, duty to consult – can be used in advocacy work
  • Powers and duties – and the key distinction between ‘specific’ and ‘general’ duties in understanding rights

The training is priced according to organisation size and the rate for individuals and small organisations is £50 plus VAT – all the free places for disabled people and carers having now been allocated.

For more of a taste of the kind of issues we will be covering on 9 February, the ‘Legal Fundamentals’ chapter of Disabled Children: A Legal Handbook is now available for free download.

Please spread the word about the training to anyone who may be interested in getting a better understanding of how the law works in practice. We will hope to run the training in other cities in future years.

More information on the training and booking details are available here.

*Moved from January 2015 as a result of a problem with room bookings

Disabled Children: A Legal Handbook – second edition now available

I’m thrilled / relieved to say that the second edition of Disabled Children: A Legal Handbook is now available online.

Legal Action Group published the first edition in 2010. It is astonishing how much of the text has had to be rewritten some five years later. We have had a wholly new SEN scheme under the Children and Families Act 2014, major changes to social care for disabled young people and those in transition to adulthood under the Care Act 2014 and a massive reorganisation of the health service under the Health and Social Care Act 2012. All this change has basically made the first edition a museum piece.

As well as covering these headline Acts and the relevant regulations and guidance as best we can, we also have some fantastic new content for the second edition. Camilla Parker has produced the definitive guide to decision making and issues in relation to capacity and competence. Polly Sweeney has given us an incredibly useful resource by way of a chapter on all the forms of remedies available to disabled children, young people and families (as well as updating the Education chapter). Rebekah Carrier led on major improvements to the Housing chapter, including new content on how to help make sure families get a home which is suitable for their needs.

We also had the benefit of excellent input from Martha Spurrier who updated the Health chapter and Louise Price who updated the Equality and Non-Discrimination chapter.

The co-authors remain myself, Prof Luke Clements and Dr Janet Read. If (when) people discover we’ve got anything wrong, it’s our fault.

The law affecting disabled children, young people and families is excessively and unnecessarily complex. The complexity has been made worse by the new legislation, which sits on top of old law dating back at least until 1970. We have done our best to make the book as accessible as possible while accurately stating the law. We hope the extensive cross-referencing will help non-lawyers find their way around the text.

As with the first edition, all the chapters of the book will again be published online free of charge by the Council for Disabled Children – I’ll confirm when the downloads are available. I hope anyone who would print the whole thing out would consider buying the book instead (!)

Above all, I hope the book continues to make a contribution to ensuring that disabled children, young people and families get the services and support to which they are entitled by law.

Final thought – as I tweeted earlier, we are very proud to have part of the Justice Quilt on the cover (see image above). I hope anyone who buys the book will also sign up to show their support for the Justice for LB campaign as they continue to struggle to get justice from the system.

Challenging local cuts – some key legal questions

Following the political choices set out in the recent Spending Review, it would seem inevitable that local authorities are going to need to make cuts to important services next year, including those provided to children and disabled people. Recent Kings Fund analysis shows that the 2% precept on council tax is a totally inadequate solution to the funding crisis for adult social care. No-one seems to be talking about what the Spending Review means for children’s social care, which wasn’t even mentioned on the Department for Education press release – but it is unlikely to be good news.

The issue now is not whether there should be cuts, but whether the cuts which have to be made are lawful, both in terms of their effect on services and those who use them and the process by which the decisions were made. As Mr Justice Blake said in R (Rahman) v Birmingham City Council (para 46) in relation to the ‘public sector equality duty’ (PSED) found in section 149 of the Equality Act 2010:

Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.

In rather an Alice in Wonderland way, Parliament has continued to impose new duties on local authorities at the same time as central government has taken their funding away to comply with them. However this means that councils need to take the hard decisions that will be made in their budgets for 2016-17 and beyond with a crystal clear understanding of their legal obligations. Although there may come a time where a local authority is unable to set a budget which allows it to meet all its legal duties, I doubt we are there yet.

Councils are currently working up and consulting on their budgets for 2016-17, so now is the time when residents and local groups may want to ask some of these legal questions:

Will the council be able to meet all its ‘specific’ statutory duties owed to individual residents? For example:

  1. The duty to meet all ‘eligible’ needs for disabled adults and their carers under the Care Act 2014
  2. The duty to meet ‘eligible’ needs for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970
  3. The duty to provide free suitable home to school travel arrangements for all ‘eligible’ disabled children under section 508B of the Education Act 1996
  4. The duty to secure special education provision in education, health and care plans for disabled children and young people in section 42 of the Children and Families Act 2014
  5. The duty to provide advocacy to disabled people and carers during the care and support assessment and planning process under section 67 of the Care Act 2014.

Will the council be able to meet its ‘sufficiency’ duties to have a sufficient level of particular services to meet local needs? For example:

  1. Childcare, including childcare for disabled children up to the age of 18, under section 6 of the Childcare Act 2006
  2. Short breaks for disabled children under regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011
  3. Education and care services for disabled children, under section 27(2) of the Children and Families Act 2014
  4. Children’s centres, under section 5A of the Childcare Act 2006
  5. Services for disabled adults and their carers, under the ‘market shaping’ duty in section 5 of the Care Act 2014

Has the council had ‘due regard’ to the needs specified in the PSED (see above) – for example the need to advance equality of opportunity for disabled people (children and adults)?

Will the proposed cuts give rise to unlawful discrimination between different groups, contrary either to the Equality Act 2010 or Article 14 of the European Convention on Human Rights?

Has the council had regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004?

Has the council treated children’s best interests as a primary consideration in its decision making, as required by Article 3 of the UN Convention on the Rights of the Child?*

Has there been ‘fair’ consultation on the proposals? In particular (quotes are from the leading consultation case of ex parte Coughlan:

  1. Has consultation taken place at a ‘formative stage’, i.e. sufficiently early in the decision making to influence the outcome?
  2. Have consultees been provided with ‘sufficient reasons for any proposal to permit of intelligent consideration and response’ – i.e. do residents know what cuts are being proposed and why?
  3. Have consultees had ‘adequate time’ for consideration and response?
  4. Once the consultation has finished, has ‘the product of consultation’ been ‘conscientiously taken into account’ in the final decision.

Several of these legal principles – for example consultation, non-discrimination and the PSED – apply equally to NHS bodies such as clinical commissioning groups who may also be contemplating cuts to valued services.

If residents and local groups are not getting answers to these questions, or are unhappy with the answers coming back, then the next step may be to consult a specialist solicitor who can advise on whether there may be a challenge via judicial review. It is essential that any challenge to financial decision making is brought extremely promptly – so advice should be obtained before any final decision is made if possible, or otherwise straight after the decision.

It is also important to bear in mind that not all councils are equal – particularly given the increased focus on councils raising revenue from their own areas. Residents and local groups may want to ask questions about what level of reserves their particular council holds – particularly ‘free’ or unallocated reserves. Although spending reserves is obviously only a short term solution, it may be possible to use reserves to mitigate some of the cuts and help with transition to alternative forms of provision.

It is unlikely that legal challenge alone is going to be sufficient where cuts are proposed – there also needs to be political pressure. There are a number of guides for local groups on how to campaign, including campaigning against cuts or to save services. I really like this one from the Every Disabled Child Matters campaign.

Local politics will still come down to local priorities, although the choices will get harder than ever. In the light of the duties above, the law requires councils to give significant priority to services for children and disabled people. It is hoped that the decision by Hampshire not to cut its short breaks budget for 2016-17 is therefore one that other local authorities will follow to the extent they can.

*We can save detailed arguments about whether and why the UN CRC has to be followed when it is not directly incorporated into English law for any case that goes to court.

Talk to Housing and Support Alliance Independent Living conference

Absolutely cracking conference put on by the Housing and Support Alliance today. Real unity in the room that we need to fight for the right to independent living in these challenging times.

My slot was given the title ‘Rights are more important now than ever’. This is roughly what I said:

What’s the point of people with learning disabilities having legal rights? Some people (including I suspect some lawyers) don’t think that this area of law is ‘real law’. On this view, local authorities and NHS bodies should just be left to get on with providing whatever support they think they can afford, perhaps subject to inspections from official bodies to make sure things don’t get too bad.

But in the 21st century as a society we don’t think that’s good enough. Instead most of us sign up to a view that everyone, including disabled people, has fundamental rights that have to be respected.

We have these rights because we are human – that’s why they are called human rights. So when councils put disabled people in places where they are not free to leave and they are subject to continuous supervision and control (watched all the time), this is a deprivation of their liberty, the same as it would be for everyone else. It needs to be properly justified and approved by law to stop there being a breach of Article 5 of the ECHR, the right to liberty.

But we also recognise in the 21st century that if we just have one set of rights for everyone we won’t ensure that everyone’s rights are properly respected. So we reflect the fact that different groups have different needs and set out their rights – women, children and finally and most recently disabled people.

So Ian’s right* – we are part of the civil rights movement. And Gary’s right* – we need to save the Human Rights Act. I think it’s striking that two of the people fronting the Act for the Act campaign are Jan Sutton and Mark Neary. Jan is a disabled women who used the Human Rights Act to get a package of care which meant she could live with dignity. Mark, as I imagine everyone here knows, can speak to the power of the Human Rights Act in helping get his son Steven home. So the Human Rights Act is fundamental to realising disabled people’s human rights.

We now have the UN Convention on the Rights of Persons with Disabilities (the CRPD). This is our Bill of Rights. It is a full package of rights, which if respected in every case would mean true independent living and community inclusion for every disabled person. Although it is still not part of our law, in the same way that the European Convention on Human Rights is through the Human Rights Act, the courts are giving the CRPD ever greater weight – for example, in helping find unlawful discrimination against disabled children in hospital who lose their disability benefits after 84 days.

If people think about the CRPD, they generally think about Article 19 – described as the right to independent living. But Article 19 is actually headed ‘living independently and being included in the community’. And that’s what it’s about – real inclusion, meaning ordinary lives, and the kind of love and relationships Sara** was talking about.

And then we have the next set of rights, those given by Parliament in specific acts like the Care Act 2014. These rights can move around and change in the details, but the basics endure.

For example the right for disabled people to have their eligible social care needs met in full regardless of the cost carries on from the old scheme to the Care Act 2014. However – if there are two ways of genuinely meeting the person’s needs the state can meet needs in the most cost-effective way; we see straight away how disputes arise.

But the basics aren’t enough. So there’s a right to personal care – but what about as Sally and Laura*** say, when your personal care gets ‘done’ by someone you don’t know, who only has 15 minutes with you and doesn’t have the time to get to know you or show you respect. Is that rights-respecting care? Of course not – either under the Care Act or the Human Rights Act.

So rights are always ‘important’, in the sense that if the law requires something to be done it must be done. Law trumps everything – even (surprise surprise) local authority policies.

But why might it be thought that rights are more important now than ever? The answer is obvious; because disabled people are under sustained attack from government policies that cut the specific fund to support independent living, undermine entitlements to social security, reduce access to legal aid and make it virtually impossible for councils to comply with their statutory duties through reducing their budgets.

And if it’s hard for councils now, we know that after the next spending review later this month it will almost certainly get worse. The Local Government Association say that with the expected cuts there will be:

  • Legal challenges because councils aren’t meeting their Care Act duties
  • Less dignified care
  • More unmet need

So rights matter because they are a way of fighting back. They give content to our shouts where people are living impoverished non-lives, as Sara said. If there is a legal duty to provide – for example – the personal care a disabled person needs to lead a dignified life, then the state can be made to provide it.

Tom**** seems to be saying we have to accept the cuts. I say no – we have to enforce the law. Isn’t it interesting that Tom says – rightly – that where you live is going to make a massive difference to the support you get. But yet the law of England is the law of England…

Should people keep paying for their support with their freedom – definitely not? Should the number of people getting state support be reducing, as Tom showed? Definitely not – there has been no legal change that would allow this. Indeed councils aren’t allowed any more to have only care for ‘critical’ needs. If anything eligibility criteria should be getting more generous rather than reducing.

We can’t fund fewer people or give them less support because the law doesn’t allow it. Indeed there is an open question as to whether Elaine McDonald’s case would be decided differently now the Care Act is in force. Would the Care Act well-being duty allow for the provision of incontinence pads in cases such as this.

With respect to Tom, it shouldn’t be a choice between libraries and social care. There are duties to have both. If the government wants to change that, they need to ask Parliament to change the law.

Until they do, surely soon we will see legal challenges by local authorities on the basis they haven’t been given enough money to comply with their legal duties? Indeed we already have – two councils took the government to court to get more funding to implement the Care Act, and it seemed the government backed down and provided the funding once the court granted permission for the claim to proceed.

The legal route to achieve this is judicial review – and the essential point I want to make in this short talk is that legal aid is still available to bring judicial review challenges. If commissioners are becoming a ‘hard to reach group’, sending them a pre-action letter before a judicial review often gets their attention.

So what should disabled people, families and allies do if their rights aren’t being respected? There are lots of options – contact their MP, start a petition, chain themselves to the council railings. I’m not discounting any of these – but I would say that one of the first things to do is get specialist legal advice. If you search ‘rightsinreality solicitors’ you will get a list of some of the solicitors with disability expertise who have legal aid contracts and can advise disabled people and family members. There are issues about financial eligibility – having too much money to get legal aid – but it is always worth checking this out with a specialist solicitor, don’t just use the online calculator.

I’ve never known someone with a legal problem take advice too early, because a good solicitor will always say if there are other things to do than go to court. But I’ve known plenty of people take advice too late, when much of the damage caused when rights aren’t respected has already been done.

It’s also vital to remember that for every case that goes to court there will be a hundred if not hundreds that get set sorted out well before, with a better package of support.

At the same time we need to improve and strengthen the legal framework. That is the point of the #LBBill which has been crowdsourced by the incredible Justice for LB campaign, with disabled people, family members and allies across the country. It would:

  • make the right to independent living in Article 19 of the CRPD part of English law;
  • stop there being caps on the cost of care;
  • require the state to respect people’s wishes as to where they live;
  • ensure that there is enough community support available; and
  • sort out problems with the Mental Health Act and Mental Capacity Act.

Many of these ideas can be read in to the existing law – and we need to push back when people deny that these rights exist. It is vital, as Sally says, that we don’t pretend everything is ok.

But #LBBill would make everything clear and put the rights in one place. We will have another go at getting the Bill into Parliament when the ballot for private members’ bills happens next summer. We are also very encouraged that the Law Commission is considering some of our ideas in its new scheme for managing deprivations of liberty.

We are less encouraged by the Department’s recent response to the No right ignored consultation. Issuing guidance isn’t going to do the job.

I want to end on some striking research which was covered yesterday by the brilliant team at Community Care. It concerns the new right to advocacy under the Care Act 2014, which is absolutely essential if that Act is going to make any real difference to people’s lives. Yet we learn that advocacy referrals are ‘way below’ expected levels; Reading council expected to provide 4,000 hours of Care Act advocacy this year, yet six months in they’ve only provided 170 hours. And this is a council that says it is actively promoting the new right. So we have to keep pushing to make these rights real.

My final conclusion is this. It is unacceptable for Parliament to pass laws and the government to sign treaties creating new rights, and then for funding to be cut to make it impossible for local bodies to realise them. This is the challenge for the next few years – and I believe rising to that challenge means using the law to enforce the extensive rights disabled people now have. If we bring the cases to show the law isn’t being respected then the funding we need must follow – that’s what the rule of law requires.

If government wants to reduce support for disabled people they need to get Parliament to change the law and face the consequences at the next election. We can’t let them get away with doing it by stealth through ever increasing cuts to budgets.

*Ian Birrell and Gary Bourlet co-chaired the conference (brilliantly). Ian is a journalist and Gary is from People First England (and judging by the mood of the conference a future Labour leader)

** Dr Sara Ryan gave an earlier keynote talk challenging the term ‘independent living’ being applied to ‘state supported non-lives’

***Laura Broughton and Sally Warren from Paradigm gave an earlier talk challenging people not to pretend things are as good as they can be

**** Tom Noon, Chairman of Cordis Bright, spoke powerfully about the present realities in relation to both housing and support

No voice heard, all rights ignored?

The train to the Housing and Support Alliance annual conference on independent living and people with learning disabilities seems an appropriate time to set out some thoughts on the Government’s response to the No voice unheard, no right ignored green paper.

‘Not best pleased’ would be one way to summarise the reaction from ‘stakeholders’ (ugh) to the response. Another way would involve plenty of expletives. The title of this post, without the question mark, was the pithy summary from @socialworkops on Twitter.

To understand the frustration it’s important to remember the context for the Green Paper. The former Minister, Norman Lamb MP, had reached a view that all the concordats and agreements in the world were not going to be enough and that legislation was required to give new hard-edged legal rights. There was plenty of room to debate what those rights should be (I had my tuppence here) but the principle seemed clear – new legislation was needed.

However after the General Election Mr Lamb was no longer Minister and the new government seems rather less enthusiastic about legislating in this area. The response was delayed and when it finally arrived it could be summarised (fairly?) as ‘issue some guidance and kick the rest into the long grass’. Or in the language of the consultation, the proposals ‘should be seen as part of an ongoing and evolving dialogue’ (p6, para 7). Let us know when you’re ready to stop talking and actually do something.

Another part of the frustration, as Rob Grieg puts very well here, is that we’ve had very good strategies and guidance for learning disability for years in the form of Valuing People and Valuing People Now. We don’t need another strategy or more guidance, we need some real action to deliver these shared goals.

So does the response meet the two tests in its title? In terms of voices heard, Chris Hatton has done some excellent comparisons between the Valuing People Now consultation and this consultation. Chris shows that the Department has heard from far fewer disabled people this time round – which is unacceptable as government should be getting better over time at engaging with the people their policies affect, not worse. As Chris says, when properly analysed ‘The numbers of people responding to the NVUNRI consultation start to look perilously small’.

And on the second test – well, it’s pretty clear that the Minister’s vision of new hard-edged rights has been ignored. In legal terms, guidance can be very important. It all depends on its legal force – some guidance must be followed by decision makers in the absence of a considered decision that there is good reason not to do so, other guidance (‘have regard’ guidance) is just something that decision makers must take into account.

However it’s surprising (to put it mildly) that the Department doesn’t appear to know yet which laws it will use to issue the guidance here. See para 8, p6; ‘we will rapidly determine the most appropriate powers under which to act to have the best and strongest effect’. Again, let us know when you’ve made your mind up.

So whether the guidance is likely to be legally important depends on what the Department eventually decide in relation to the powers they will use to issue it. But what about its practical effect? Experience suggests that the likely fate of more guidance is to end up on more shelves. I’m not saying for a moment that if Parliament passes new laws they are automatically followed (hello, Care Act 2014) but the chances of cultural change must be must higher when there is new primarily legislation, not merely further guidance. Surely? Please let this be true or we are wasting a lot of money on those MPs…

Also, guidance cannot create new legal rights and duties – it can only reflect existing law. So if (as we are told at p14, para 41) there was ‘strong support for proposals about NHS commissioners sharing duties to promote individual wellbeing in the Care Act 2104 with local authorities’, why not get on and legislate for this now?

It is also concerning that even phase 1 of the proposals (which includes the new guidance) will take place ‘during the current financial year (2015/16) and into 2016/17’ (p9, para 15). So we may have to wait quite a while even to see the guidance. The grass for the guidance may not be long, but it could certainly use a trim.

There are some more interesting ideas in phase 2, including the named social worker proposal (*cough* funding *cough*) and the idea of extending Care and Treatment Review principles to local authority-led placements. However there is no timeframe for this phase. We are told at para 16, p9 that ‘This phase will involve further consultation with stakeholders, with any resulting legislation to be introduced as soon as parliamentary time allows’. So not only will there be more consultation (why?), but the real mischief here is that there is no legislative slot allocated for any Bill in the Parliamentary timetable. Doesn’t look from this like there is any chance of new legislation until the end of next year at the earliest – hope I’m wrong.

Phase 3 is described as ‘more radical solutions’, however the summary only lists two:

  • ‘monitor implementation of the new service model for commissioners of health and social care services, and of CTRs on care planning, admissions, transfers and discharges and consider the need for further legislative proposals in response to review of impact’. I’ve read this three times and I’m still not sure I understand what it means.
  • ‘further consideration in principle of whether and how the Mental Health Act should apply to people with learning disabilities and/or autism and if this remains appropriate’. I know this is a controversial issue but surely the point of the Green Paper consultation was to allow the Department to reach a view on the principle here, subject to further consultation on the detail? As I read this it essentially means ‘no change’. Note also (p21, para 81) that ‘some stakeholders, especially individuals, their families and supporters, and the voluntary and community sector were keen on the principle that some sort of change was needed’ (emphasis added). No voice unheard?

So that’s the government response. I’d contrast it to the coherent package of new rights that we have set out in the second draft of #LBBill, with input from a wide range of disabled people, families, professionals and allies. Of course a key difference is that #LBBill is trying to improve the legal framework so disabled people can realise their right to independent living and community inclusion generally, and the Green Paper response is trying to fix one part of the problem for one specific group of disabled people (supposedly ‘the people who need most help’, see the response at p12, para 31). Even if I fundamentally disagree with the second approach, it is still terrible to see the opportunity to strengthen the rights of this group lost.

Two slivers of light:

  1. New guidance won’t necessarily be useless. It all depends what it says and even more importantly what statutory force it has. Let’s hope it is strong and clear guidance with the greatest possible legal force.
  2. The Law Commission are working up proposals for a new scheme to replace the Deprivation of Liberty Safeguards which may yet result in legislation that contains some of the #LBBill ideas. Given the Department’s response, there’s now a huge amount riding on the Law Commission’s draft Bill due in 2016.

Other than that, looks like it’s back to the private members’ bill ballot for #LBBill in summer 2016.

I can’t let this piece end without highlighting something said in the Minister’s foreword to the response (p4). Towards the end of his piece, the Minister (Alistair Burt MP) says; ‘As a country, a key measure of our success will be how we care for the weakest and most vulnerable in our communities’. There are so many things wrong with this sentence it’s hard to know where to begin – so I’ll just suggest that if anything makes people with learning disabilities ‘weak’ and ‘vulnerable’ it’s government policies and state actions, from cutting social security and legal aid to detaining people without lawful authority. It’s hard to see how any real change can come from a position where disabled people are perceived as weak and vulnerable victims needing to be saved.

In defence of Article 5 and the right to liberty – North Yorks CC v MAG

This post is about a judgment of the Court of Protection which shows the continued force of Article 5 of the European Convention on Human Rights in protecting disabled people’s fundamental rights.

Article 5 protects the right to liberty. As most people reading this blog will be aware, the Supreme Court handed down a judgment known as ‘Cheshire West’ last year which made clear that disabled people have the same right to liberty as the rest of the population. As a result, if a person is subject to continuous supervision and control and is not free to leave their accommodation, there will be a deprivation of liberty which has to be approved and justified to avoid a breach of Article 5.

The problem comes with the tortuous way the relevant authorities have decided to manage the requirement to approve deprivations of liberty for disabled people. For example the ‘deprivation of liberty safeguards’ (DoLS) are almost universally disliked. The recent Law Commission consultation on a new system said there was a ‘compelling case’ for replacing them, not least because they are ‘perceived to be overly technical and legalised’ and ‘not meaningful for disabled people and their families or carers’ (para 2.41).

One of the most welcome aspects of the Law Commission’s proposals for a replacement system is the focus on disabled people’s wider human rights, in particular the rights protected by Article 8 ECHR – the right to respect for private life, family life and the home. Article 8 is the space where considerations of vital issues like human dignity often come into play. However Article 8 is a ‘qualified’ right – which means that considerations like the financial resources of the state are relevant when the courts consider how far public bodies have to go to make Article 8 rights real. This is a major reason why Mrs McDonald’s challenge to the decision that her nighttime care should be replaced with incontinence pads failed in the European Court of Human Rights – once the local authority got the process right and completed the required reassessment, the court was not prepared to find a breach of Article 8 because it is generally up to the state how public funds are allocated.

Article 5 ECHR is different however. The right to liberty is absolute – it can only be interfered with for the reasons set out in Article 5. The state is not entitled to deprive a person of their liberty simply because it would cost less than to meet their needs in a less restrictive way.

The difference this makes is played out in North Yorkshire County Council v MAG and others [2015] EWCOP 64, a judgment handed down this summer (13 July 2015). The issue in the case was whether the Court of Protection should authorise the deprivation of liberty which resulted from the care arrangements for a 34 year old severely disabled man, MAG. The judgment makes clear that:

  • MAG had been in his accommodation for around 9 years, since 2006
  • The property was too small for him to use his wheelchair indoors, so he had to move around by crawling and pulling himself along the floor
  • Because the property only had one bedroom it was too small for sleep-in staff, who would have been less intrusive for MAG
  • The property had no outside space, so when MAG was not taken out he was confined indoors

The local authority appears to have accepted that a move would be desirable for MAG (see para 16 of the judgment), but the Judge characterised its case as follows (para 12): ‘this case has been before the court for four years during which time it has been required by the Official Solicitor to identify alternative options which it says its search has proved are simply not available’. On this basis the local authority sought final declarations, including approval of the resulting deprivation of liberty for MAG.

Importantly in my view, the Judge visited MAG in the property. His findings from the visit were recorded at para 20 of the judgment:

20 The problem is that MAG’s flat, at which I visited him on 20 February 2015, is so small that his wheelchair cannot be used indoors. The corridor leading from the bedroom to the lounge and kitchen is too narrow to move a wheelchair into those rooms. He moves around the flat on his bottom and using his hands and knees. This has resulted in him sustaining painful bursitis in both knees and he has calluses to his knees and ankles. Ms Hutchinson [learning disability nurse and best interests assessor] advised that MAG’s current property does not meet his needs and that he should be able to live in a property which ensures he can live a life with dignity and comfort and which does not cause him physical or emotional harm.

Also importantly, MAG’s living arrangements were ‘supported living’, which falls outside the scope of the DoLS. As such, the only way the local authority could avoid a breach of Article 5 was to have the deprivation of liberty authorised by the Court of Protection, see para 21.

The local authority’s position was clearly set out at paras 22-23 of the judgment:

22 NYCC accepts that the current placement involves a deprivation of liberty and that there is no immediate alternative residential option. It seeks the authorisation of the court for MAG’s continued deprivation of liberty on the basis that it is justified as a result of his condition which renders the restrictions proportionate and necessary. NYCC says that the issues raised by the expert, Christine Hutchinson, and the Official Solicitor relate to whether the outcome could be achieved in a less restrictive manner but that there are no less restrictive options available. Where it has been possible to make adjustments to achieve a less restrictive outcome, such as time spent in the community, this has been done.

23 NYCC says that on the basis that the position is clear and the court does not have the jurisdiction to require it to find another property which would not ordinarily be available to MAG, all steps that he could take if he did not lack capacity, have been taken by it. The accommodation at the Tenancy and his care package which mean that he is not permitted to leave unaccompanied and is under continuous supervision and control, have the effect of depriving MAG of his liberty. The outcome cannot be achieved in a less restrictive way and the restrictions in place are necessary and proportionate. On that basis the deprivation of liberty should be authorised by the court.

So the local authority’s case was clear – there’s nothing else available, so the Court should authorise MAG being deprived of his liberty in his accommodation notwithstanding its flaws.

The Official Solicitor, representing MAG, did not accept this. His first argument was recorded by the Judge as follows (para 28): ‘The Official Solicitor makes the point that the reference in Re MN to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. I accept that analysis.’

This is really important – because the general rule (being confirmed by the Court of Appeal in Re MN) is that the Court of Protection cannot require a public authority to act in a particular way. The Judge here accepted the Official Solicitor’s submission that this rule does not apply when what is at stake is the right to liberty under Article 5.

The Official Solicitor’s position was that the ‘narrow corridors, lack of outdoor space, lack of privacy and lack of a wheelchair (when his needed repair and no replacement was made available) amount to a disproportionate deprivation of liberty in this case’ (para 33).

The Judge made two important findings at paras 35-36:

35 I accept the Official Solicitor’s submission that the authorities in this case were not willing to initiate a search for alternative accommodation unless and until the Court decided that it was in MAG’s best interests to move in spite of the fact that the Commissioners had decided in 2013 that it was in his best interests to move to a less restrictive environment.

36 I accept that there was culpable delay on the part of NYCC in finding a less restrictive property…

The Judge’s final decision was relatively short and for ease of reference I set it out in full below:

Decision
37 On behalf of MAG the Official Solicitor outlines the decision I have to make as being whether the interim authorisation ought to be continued in light of what he characterises as the overly restrictive intensity of MAG’s deprivation of liberty. NYCC and the CCG require the authority of the Court lawfully to deprive MAG of his liberty in order to act compatibly with Article 5. There is no dispute that there is a deprivation of liberty in this case.

38 I accept the Official Solicitor’s submission that the central issue is not whether MAG’s confinement is properly justified by the fact that no alternative accommodation is available. It is whether, as set out in the closing submissions on behalf of MAG, ‘…the persistence of his unsoundness of mind justifies the validity of his continued deprivation of liberty: Re X [2014]
EWCOP 25 , para 14; KC v Poland (Application no. 31199/12), para 70. In this regard it is crucial to note the Strasbourg Court’s view in Stanev v Bulgaria (2012) 55 EHRR 22 para 153:“… the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty.”’

39 I accept the submission on behalf of MAG that it is the authority’s failure in its attitude towards the search for less restrictive accommodation which has caused significant delay and lengthened these proceedings. I am urged by the Official Solicitor not to authorise this deprivation of liberty because it is unwarranted because the intensity of the measures and in particular those which result from the environmental features of the property are not justified and proportionate. MAG
has remained at the Tenancy for nine years and been subject to a deprivation of liberty there. He has no choice but to mobilise on his hands and knees which has caused physical problems including Bursitis and a recurring fungal infection in his thigh. He does not have access to suitable outdoor space and sleeping night support is not possible in the absence of a second bedroom. The only private space he has is his own bedroom.

40 On behalf of the CCG I am urged not to refuse the authorisation on the basis that if I do so there will be a lack of clarity about MAG’s position and that of NYCC in relation to its property search. In response it is argued on behalf of MAG that not to continue the interim authorisation will result in a substantive breach of Article 5 which will ensure that proactive steps are taken by the statutory authorities to locate a less restrictive living environment.

41 I have considered the submissions of the parties and in this case I have the benefit of having seen MAG at the Tenancy. As I have indicated already, I accept the submissions of the Official Solicitor in relation to the issues with the current accommodation and on that basis I consider that I cannot endorse a care regime which risks breaching MAG’s right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure
that there is no breach of its obligations. I am aware of the steps which have been taken recently. However, MAG’s needs were identified by the assessment in 2006. It is clear that the Tenancy does not meet those needs and that should have been clear when the property was identified by GC in 2006. In 2013 the Commissioners accepted a move would be in MAG’s best interests and would be less restrictive. This is a question of MAG’s liberty and I do not accept that I can
authorise the deprivation of that liberty on the basis that nothing else is available. He has been in this unsatisfactory situation for a prolonged period. NYCC has been extremely slow to accept its responsibilities in relation to rehousing him. These proceedings started in 2011 and it was not until 2 August 2013 that it accepted it owed a duty in this respect.

42 Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach. In all the circumstances, I am not satisfied that I should make the declaration sought by the local authority and I will not authorise the deprivation of liberty in its current form.

Some observations:

  1. The Judge (in my view correctly) highlighted what was said in the Stanev case, that ‘the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty’.
  2. As such the real issue was not, as the local authority (and CCG) said, the fact that there was nothing else available. The issue was whether the deprivation of liberty caused by MAG’s living arrangements could be justified.
  3. The ‘failure’ in the local authority’s ‘attitude’ in searching for less restrictive accommodation was clearly central to the Judge’s decision – see para 39.
  4. The Official Solicitor expressly argued that the effect of the Court refusing to authorise the deprivation of liberty would be to ‘ensure that proactive steps are taken by the statutory authorities to locate a less restrictive living environment’ – in other words to force them to move MAG as quickly as possible to bring the breach of Article 5 to an end (see para 40).
  5. The Judge’s ultimate conclusion (para 41) was as follows: ‘I consider that I cannot endorse a care regime which risks breaching MAG’s right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure that there is no breach of its obligations.’
  6. The Judge agreed with the Official Solicitor (para 42) that ‘Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach’.

In my view the approach of the Court in this case is not without its problems. Giving such weight to the local authority’s failure to move MAG raises the question of how much effort is required before the Court would authorise a deprivation of liberty in arrangements which were less than suitable for the disabled person.

However what this case does is show that Article 5 offers real protections for disabled people, the effect of which can go beyond the qualified requirements of Article 8. It is important that whatever new scheme ultimately replaces the DoLS recognises this – something that no doubt the Law Commission have well in mind.

Response to the Law Commission consultation – Mental Capacity and Deprivation of Liberty

The deadline for responses to the Law Commission’s epic consultation on Mental Capacity and Deprivation of Liberty is this Monday, 2 November. The consultation document puts forward a well-considered new scheme which in my view would be a massive improvement on the mess the current law is in in this area. There are inevitably significant areas where the proposals need further thought, most notably in my view the reliance on the bizarre definition of ‘supported living’ in the Care Act scheme. However there is much more to welcome here than to criticise, in particular the emphasis on disabled people’s wider rights such as the rights protected under Article 8 ECHR which is integral to the proposed new scheme.

Responses to the consultation can be emailed to tim.spencer-lane@lawcommission.gsi.gov.uk. In case it helps anyone who is responding similarly close to the deadline, extracts from my draft response are pasted below – being the questions and proposals which I think are the most important and / or on which I’ve got a clear view.

If you’re a supporter of the Justice for LB campaign and the proposed #LBBill, please put in a response which shows your support for the Bill proposals which have made it into the consultation – guidance from Justice for LB here. This is a fantastic chance to see some of the #LBBill ideas get into law.

Where I have not responded to a proposal this is because I agree with it. In particular I would emphasise my support for the proposals in chapter 12 on ‘Supported Decision-Making and Best Interests’ which in the absence of a wholesale review would go a significant way to remedying the deficiencies in the MCA scheme. The emphasis on disabled people’s rights beyond the right to liberty under Article 5 ECHR, in particular the rights protected by Article 8 ECHR, throughout the consultation is also very welcome.

Provisional proposal 2-1: The Deprivation of Liberty Safeguards should be replaced by a new system called “protective care”.

I fully agree that the Deprivation of Liberty Safeguards should be replaced, as they are not fit for purpose. I do not anticipate that the Commission will receive many, if any, responses suggesting that they should be retained. Amongst their many flaws, for me the fatal flaw is that they are restricted in their application to hospitals and care homes, setting up a two-tier system which treats disabled people differently depending on the setting in which they are deprived of their liberty, without any objective justification.

I also agree with the essential elements of the Law Commission’s proposed replacement system, subject to the caveats expressed below. However I do not agree with the proposed title of the new system, “protective care”, which is excessively paternalistic. I would prefer to see the new system given a positive title, such as “rights respecting care”.

Question 3-1: have we identified the correct principles to underpin protective care?

Yes in general, including in particular the principle that the scheme should be based in the Mental Capacity Act. However given the approach of the Supreme Court in cases such as R (SG) v Secretary of State for Work and Pensions and Mathieson v Secretary of State for Work and Pensions, it is not sufficient for the new scheme to merely be ‘supportive’ of the UN Disability Convention. The scheme has to ensure that the ECHR rights of all those affected by it are fully respected, and those rights are in turn informed by the rights in the Disability Convention and the other unincorporated Conventions. By way of example, the Optional Protocol to the Convention Against Torture (OPCAT) which has been signed and ratified by the UK is also directly relevant here to the interpretation of what is required under Article 5 ECHR, as it requires monitoring and inspection of all places of detention. The statement of intent in my view should therefore be that the new scheme will be ‘compliant with the rights protected by the European Convention on Human Rights, as informed by the UN Disability Convention and other relevant international instruments’.

Provisional proposal 4-1: the scope of protective care should include hospital, care home, supported living, shared lives and domestic accommodation?

Disagree on the detail, although not the intention to create a broad scheme. My concern is that the scheme should have the broadest possible application to avoid certain disabled people falling outside its safeguards. As set out below, the technical definition of ‘supported living’ under the Care Act 2014 scheme would exclude many disabled people living in ‘ordinary’ accommodation from the protections of the new scheme. This might be solved by the catch-all category of ‘domestic accommodation’ at least in relation to restrictive care and treatment – but in that case what benefit is served by distinguishing certain types of ‘supported living’? The scope of protective care should simply be ‘all settings where disabled people might be deprived of their liberty’, i.e. everywhere.

Further in relation to day centres, I am not convinced by the reasoning in the consultation paper at para 4.24 which suggests that any authorisation of a deprivation of liberty at a day centre would be covered by the authorisation of a deprivation at a person’s place of residence. Firstly, a day centre is likely to be run and administered completely separately from a person’s place of residence. Secondly, it is quite possible in my view that a person might be deprived of their liberty in a day centre but merely subject to restrictions on their liberty in their home – for example, the supervision and control the person experiences may be much more intense at a day centre.

Question 4-2: is the definition of supported living provided under the Care Act 2014 [sic – not 2015 as per the question] appropriate for our scheme?

The definition of ‘supported living’ under the Care Act scheme (see the consultation at para 4.19) is technical and not related to the reality of what many disabled people experience as ‘supported living’. As the consultation paper correctly notes at para 4.20, it excludes all accommodation not either adapted or intended for occupation by disabled people, however this is measured. I share all the concerns expressed by Lucy Series about this definition as reflected in the consultation paper at para 4.20. There is no benefit I can see from adopting this definition for the new scheme.

Provisional proposal 6-1: supportive care should apply where a person is living in care home, supported living or shared lives accommodation, or if a move into such accommodation is being considered.

Supportive care should apply where the state has played any role in arranging a disabled person’s accommodation, or is playing any role in a proposed move to alternative accommodation. As noted above, restricting the application of the scheme to the technical categories of accommodation created by the Care Act scheme is unhelpful and will result in disabled people who are subject to significant levels of state intervention in ‘ordinary’ housing falling outside the scope of the scheme.

I note the Law Commission’s provisional view (para 6.4) is that ‘it would be over-intrusive and an inappropriate use of public resources to require additional assessments or the formal use of an advocate or appropriate person’ where people are living in family settings or other domestic settings. However ‘supported living’ as defined in the Care Act is a ‘domestic setting’. I do not see any principled basis for adopting additional safeguards because someone happens to be living in the type of accommodation which meets the technical definition of ‘supported living’.

The only class of cases where it seems to me the imposition of ‘supportive care’ safeguards would be disproportionate in relation to disabled people who lack capacity to decide where to live would be cases where the state has played no role in the disabled person’s actual or anticipated living arrangements. In those cases, absent any safeguarding concerns or arguable breaches of the positive obligations under Article 5 and/or 8 ECHR, there will generally be no proper role for public authority involvement. That would seem to me to be a principled basis for the drawing the line in relation to ‘supportive care’, not whether the person’s actual or anticipated accommodation meets the somewhat arbitrary definition of ‘supported living’ under the Care Act scheme.

Provisional proposal 6-2: supportive care should cover people who may lack capacity as a result of an impairment of, or a disturbance in the functioning of, the mind or brain, in relation to the question whether or not they should be accommodated in particular care home, supported living or shared lives accommodation for the purpose of being given particular care or treatment.

Disagree in part. Supportive care should apply in the above way to any type of accommodation, not just those specified above. For example, it should apply if a local authority is proposing that a young disabled person should leave the family home and live in ‘ordinary’ housing which would not meet the technical Care Act definition of ‘supported living’.

Provisional proposal 6-3: a local authority should be required to undertake or arrange an assessment, or ensure that an appropriate assessment has taken place, where it appears that a person may be eligible for supportive care in care home, supported living or shared lives accommodation.

Disagree in part. The requirement to assess should not be limited to specified types of accommodation for the reasons given above. Further the requirement to undertake or arrange an assessment should also apply where one is requested by the person, an advocate, family member or friend.

Question 6-10: should local authorities and the NHS in England ever set personal budgets for disabled people living at home by reference to the cost of meeting the person’s needs in residential care?

Such a practice will almost always result in a disproportionate interference with the person’s right to respect for private life and the home under Article 8 ECHR, read with the right to independent living and community support in Article 19 of the Disability Convention.

The Care Act statutory guidance goes a significant way towards prohibiting this practice by local authorities, but there is no guidance of similar force to CCGs, so far as I am aware. As such at least two CCGs have adopted ‘maximum expenditure policies’ of this type. This should be expressly prohibited under the new scheme under the key principle of respecting rights. As the Commission is aware this proposal is central to the ‘LB Bill’ promoted by the Justice for LB campaign.

Question 6-11: should there be a duty on local authorities and the NHS, when arranging care home, supported living or shared lives accommodation for a person who lacks capacity to decide where to live:

  1. to secure the most appropriate living arrangement for that person, which as far as possible reflects the person’s wishes and feelings; and
  2. to seek the agreement of any donee of a Lasting Power of Attorney or deputy, or a declaration from the Court of Protection.

Yes, with the important caveat that these duties should not be restricted to those who lack capacity to decide where they live but should apply in all cases where the state is involved in determining a person’s living arrangements. A mechanism where this duty could apply to persons both with and without capacity to make the relevant decisions is set out in the draft ‘LB Bill’.

The ‘most appropriate living arrangements’ duty echoes the duty in relation to placements of looked-after children in section 22C(5) of the Children Act 1989, which was inserted by Parliament in recognition of the unacceptably poor outcomes for care leavers. Given the position of many disabled people who would benefit from this duty is equally poor when measured against all the relevant indicators there is just as much need for this kind of duty here. Consistent with my submissions above this duty should not be restricted to arrangements for care home, supported living or shared lives accommodation but should apply whenever the state is involved in making living arrangements for a disabled person.

The ‘agreement’ duty is equally important to provide a degree of independent checking of proposals put forward by the state. Although there would be obvious resource implications if the Court of Protection (or other independent body) was obliged to approve living arrangements where a person lacks capacity and has no representative, this is necessary to avoid the public authorities being able to simply railroad through the proposals it has decided upon, as appears to happen far too frequently at present. Again, this should apply whenever the state is involved in making living arrangements for a disabled person, not just in relation to proposed moves to care home, supported living or shared lives accommodation.

Question 6-12: should local authorities and the NHS be required to report annually on issues relating to living arrangements and community support, such as the number of living arrangements made and how often these arrangements were inconsistent with the person’s wishes and feelings?

The details as to how the reporting requirements would work are set out in the second draft of ‘LB Bill’. It would be important that the Secretary of State should publish reports at a national level based on this data, to allow for comparisons to be made between local areas.

Question 6-14: should the duty to make referrals for protective care be a regulatory requirement which is enforced by the Care Quality Commission, Care and Social Services Inspectorate Wales, or Healthcare Inspectorate Wales?

I can see no reason why this important duty would not form part of the regulatory and inspection regime for registered care providers.

Provisional proposal 7-1: the restrictive care and treatment scheme should apply to people who lack decision-making capacity as a result of an impairment of, or a disturbance in the functioning of, the mind or brain.

On balance, yes. Although I share the concerns of the Essex Autonomy Protect as to the compatibility of this approach with the Disability Convention, until the MCA 2005 is amended it will be necessary for the restrictive care scheme to dovetail with the approach of the MCA in this way.

Provisional proposal 7-2: a person would be eligible for safeguards if: they are moving into, or living in, a care home, or supported living arrangements or shared lives accommodation; some form of “restrictive care and treatment” is being proposed; and the person lacks capacity to consent to the care and treatment.

The trigger for the enhanced safeguards should simply be actual or anticipated restrictive care or treatment. The setting in which this care or treatment is irrelevant (with the potential exception of different treatment for hospital settings). In particular there is no principled basis for distinguishing between disabled people in ‘supported living’ as per the technical Care Act definition and other types of ‘ordinary’ housing. This is a wholly arbitrary distinction from the perspective of the disabled person, and one likely to lead to very large numbers of disputes as to whether the Care Act ‘supported living’ definition is met.

I recognise that the imposition of safeguards in cases where a disabled person is being cared for in a family home or their own home will be controversial. However in my view the interference with disabled people’s Article 8 ECHR rights is likely to be proportionate given the enhanced scheme will only apply to (1) those who lack capacity to consent to their care or treatment and (2) situations where invasive care or treatment is proposed.

Question 7-4: should the restrictive care and treatment safeguards be available to people who lack capacity to consent to their care plan, in any of the following cases:

  1. the person is unable, by reason of physical or mental disability, to leave the premises, including:
    1. unable to leave without assistance
    2. able to leave without assistance but doing so causes the adult significant pain, distress or anxiety
    3. able to leave without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others
    4. able to leave without assistance but takes significantly longer than would normally be expected
  2. The person has high care needs and consequently is dependent on paid carers
  3. The person has limited ability to direct their own care or to access existing safeguards?

Yes, with the following caveats in relation to each of the categories

  1. Category 1 – it would seem helpful here to mirror the Care Act eligibility regulations, however care will need to be taken that local authorities do not interpret these sub-categories too restrictively.
  2. ‘High’ care needs and ‘dependent’ on paid carers will need to be defined
  3. Similarly, ‘limited’ ability to direct care or access safeguards will need to be defined.

Question 7-5: are there any specific forms of care and treatment that should automatically mean that the person is eligible for the restrictive care and treatment safeguards?

No. The question is not the type of care or treatment but its impact on the person, which needs to be assessed on a case by case basis.

Question 7-9: should the restrictive care and treatment assessment require a best interests assessment to determine whether receiving the proposed care or treatment is in a person’s best interests, before deciding whether it is necessary to authorise restrictive care and treatment?

Yes. It would be consistent with basing this scheme in the MCA 2005 for the primary question to be whether the proposed care or treatment is in the person’s best interests.

Question 7-10: should a person be eligible for the restrictive care and treatment scheme if restrictive care and treatment is necessary in their best interests – taking into account not just the prevention of harm to the person but also the risks to others?

Yes, so long as there is proper assessment that avoiding the risk of harm to others is in the person’s best interests – as will usually, but not always, be the case.

Question 7-12: should all significant welfare issues where there is a major disagreement be required to be decided by the Court of Protection?

All significant welfare issues should be decided by the Court of Protection, with ‘significant’ defined in the new scheme. A requirement for there to be a ‘major disagreement’ discriminates against disabled people who are (1) unable to demonstrate any disagreement with their care arrangements, (2) have no family or friends to disagree on their behalf and / or (3) have family or friends who simply acquiesce with the public authority’s proposals because they agree with them or because they are not aware of any alternatives.

I accept what is said at para 7.49 of the consultation, being that one of the benefits of the new scheme will be ‘a more proportionate approach to decision-making that does not require a court decision in every case’. As such ‘significant’ welfare issues could be defined relatively narrowly in accordance with the guidance in the case law. However depending on the presence of a ‘major disagreement’ to trigger the requirement for court involvement is unfair and discriminatory as outlined above. Indeed it may be that it is cases where everyone agrees on what is best for the disabled person that an independent check by the court is most important.

Question 7-21: should there be additional oversight of the role of the “Approved Mental Capacity Professional” and a right to request an alternative assessment?

Yes on both counts:

  1. Appropriate oversight independent of the local authority will be required given the enhanced status of the AMCP role.
  2. The right to request an alternative assessment should vest in the disabled person, and MCA representative or an IMCA or Care Act advocate. The alternative assessment should be carried out by an AMCP not employed by the same local authority as the first assessment.

Question 7-24: should the new scheme allow for conditions or recommendations to be made that are more restrictive of liberty than the application is asking for?

All restrictive conditions sought should be clearly set out in the application. This avoids the disabled person or those representing them being taken by surprise by further more onerous conditions imposed of their own volition by the AMCP.

Question 7-25: should there be specific sanctions for a failure to comply with a condition, and if so, what should they be?

The issue of sanctions for non-compliance with the law has been raised repeatedly in the groups working on the drafting of the ‘LB Bill’. While there has been no firm conclusion from these discussions the ideas raised include the following:

  1. Referral of individual professionals to the relevant professional regulator
  2. Fines for the public authority
  3. Publicity – on the basis that sunlight is the best disinfectant
  4. Criminal sanctions in the most serious cases.

Given the Commission’s stated desire for the new scheme to ‘secure the support of disabled people’ (consultation at para 3.2), I would suggest that specific work needs to be undertaken with disabled people and disabled people’s user-led organisations on the question of potential sanctions for non-compliance with the new scheme.

Provisional proposal 7-28: the AMCP should be able to review and vary conditions without necessarily holding a full reassessment of best interests.

In general the monitoring and reviewing role for the AMCP would seem to address some of the practical problems considered by the Court of Protection in Re NRA. However it is essential to set proper boundaries to this role. As such any variation of conditions without a full reassessment of best interests would have to be narrowly confined, if permitted at all.

Provisional proposal 7-30: the AMCP and local authority must review the care and treatment following a reasonable request by the person, a family member or carer, or an advocate or appropriate person.

A review should be triggered on any request by any of the above persons, unless perhaps a review has been undertaken recently (say within 3 months), in which case the AMCP and local authority could refuse on the basis of unreasonableness (e.g. if nothing had changed in that time). If the basis right to request a review is subject to a reasonableness qualification this will simply lead to disputes as to whether a particular request is reasonable.

Provisional proposal 7-32: cases of deprivation of liberty concerning those living in a family or domestic setting must be authorised by the AMCP and subject to the same safeguards as those provided under the restrictive care and treatment scheme.

Agree – although as per proposal 7-2 above my view is that the restrictive care and treatment scheme should apply in its entirety to all settings, including domestic settings. If it does not then at the very least there needs to be equivalent safeguards in cases where disabled people are deprived of their liberty, regardless of setting.

Question 7-36: should doctors be eligible to act as AMCAs?

It is difficult to see any principled objection to this, so long as doctors receive proper training and only carry out the best interests assessment in appropriate cases, for example when the relevant decision relates solely to proposed medical treatment. The practical concern would be whether doctors are sufficiently informed as to the social model of disability to conduct a holistic best interests assessment. It may be that it is valuable for a non-medical professional to carry out the best interests assessment in cases relating to medical treatment precisely to ensure that a wider perspective is taken. However it does not seem to me necessary or appropriate to prevent doctors from being eligible to act as AMCAs in any case.

Provisional proposal 7-37: an AMCP should be able to authorise restrictive care and treatment in urgent cases for up to 7 days, and to extend this period once for a further 7 days, pending a full assessment.

Although I recognise the need to have a process to manage truly urgent cases, I have two concerns about this proposal:

  1. Is it suggested that the urgent authorisation would permit a change in living arrangements for the disabled person? If so I would question whether this would afford an appropriate level of safeguard for such a serious and potentially irreversible decision.
  2. I am not clear why there should be a need for the urgent authorisation to be able to renewed after 7 days, whether for a further 7 days or at all. This would seem to go against the principle that urgent authorisation should be restricted to cases of genuine emergencies.

Provisional proposal 8-2: a person may be deprived of their liberty for up to 28 days in a hospital setting based on the report of a registered medical practitioner. A responsible clinician must be appointed and a care plan produced. Further authorisations for a deprivation of liberty would require the agreement of an AMCP?

I share the widespread concern as to this proposal. While I agree that a different scheme is required for hospital and palliative care settings this proposal places the bar far too low. As a minimum in my view:

  1. The duration of an authorisation under this proposal needs to be reduced, perhaps to seven or 14 days; and
  2. A second registered medical practitioner should be required to approve the deprivation other than in emergency cases.

Question 8-3: is the appointment of an advocate always appropriate in all hospital cases, or is there a need for an alternative safeguard (such as a second medical opinion)?

An advocate is always necessary and appropriate in these cases. A second medical opinion would not begin to fulfil the same functions as an advocate.

Question 9-3: should the appropriate person have similar rights to advocates under the Care Act to access a person’s medical records?

Yes. If there is a situation where the person should not access the medical records for any reason then they are plainly not ‘appropriate’ and an advocate should be appointed.

Question 9-4: should Independent Mental Health Advocacy be replaced by a system of Care Act advocacy and appropriate persons?

Although the views of current users of mental health advocacy would need to be given great weight in deciding this question, my provisional view would be yes – on the basis that a single streamlined advocacy and appropriate persons system would be easier to understand and easier to enforce as a right.

Question 11-3: which types of cases might be considered generally to be of “particular significance to the person concerned” for the purposes of the right to appeal against the decision of the First-tier Tribunal?

I do not agree that the appeal right (which in my view should be to the Upper Tribunal) should be restricted in relation to factual disputes to cases which are of “particular significance to the person concerned”. The test should be instead to the effect that there is a significant dispute of fact which may have made a material difference to the outcome of the appeal. This test should be applied by the Upper Tribunal on a case-by-case basis. All cases of restrictive care or treatment will be of “particular significance to the person concerned”, so properly interpreted the proposed filter would have no impact. If it was interpreted restrictively, particularly against a pre-determined list of circumstances, the proposed filter would deny a second hearing to cases which may be felt by the person concerned to matter greatly to them.

I would also observe here (as there does not appear to be another obvious place to address the issue) that serious medical treatment and significant welfare decisions should continue to be determined by the Court of Protection. In those cases the Court of Protection should also be able to discharge the Tribunal review functions in relation to restrictive care and treatment generally to avoid the need for a separate review by the Tribunal.

Question 11-6: how might the First-tier Tribunal secure greater efficiencies – for example, should paper reviews or single member tribunals be used for relatively straightforward cases?

I would have no objection to the use of single member tribunals. However in relation to paper reviews, in my view the decision of Charles J in Re NRA is wrong and an oral hearing is required in every case, at least on the first occasion, this requirement stemming both from common law fairness and Articles 6 and 8 ECHR. I would therefore strongly suggest that the Law Commission should not propose any process whereby appeals against restrictive care or treatment decisions could be determined on the papers. The suggestion that any of these cases will be “relatively straightforward” is dangerous given the importance of the issues at stake for a disabled person who lacks capacity to consent to the relevant care or treatment.

Question 11-7: what particular difficulties arise in court cases that raise both public and private law issues, and can changes to the law help to address these difficulties?

The primary difficulty at present, as noted in the consultation, is the inability of the Court of Protection to compel public authorities to act in accordance with their statutory and common law duties. This could be remedied to a limited extent if appeals against restrictive care or treatment decisions went to the Upper Tribunal which can exercise a judicial review jurisdiction. Consideration may need to be given to whether an appeal could go directly to the Upper Tribunal in a case which raises public law issues.

Question 11-8: should protective care provide for greater use of mediation and, if so, at what stage?

I would be concerned about the widespread use of mediation in cases which engage the fundamental rights of people who lack capacity to consent to their own care or treatment. In such cases the court or tribunal plays a vital role in imposing an independent check on the arrangements. I would not favour the extension of mediation in this area.

Question 11-9: what are the key issues for legal aid as a result of our reforms?

The key issue will be the extension of non-means-tested legal aid to anyone who is appealing a restrictive care or treatment decision. The current position, whereby non-means-tested legal aid is only available to those challenging deprivations of liberty in hospitals and care homes, is in my view absurd and gives rise to a breach of the non-discrimination provisions in Article 14 ECHR. This must be remedied for the new scheme to operate effectively.

Question 13-3: how (if at all) should the law promote greater use of advance decision-making?

In my view the real issue with advance decision-making is not any deficiencies in the legal scheme but the lack of any awareness amongst the general public as to its importance. The remedy is not therefore law reform but a large-scale public awareness campaign.

Question 15-2: is the concept of the zone of parental responsibility appropriate in practice when applied to 16 and 17 year olds who lack capacity.

16 and 17 year olds who lack capacity fall within the scope of the MCA. As such the zone of parental responsibility has little if any relevance for this group. It certainly should not be relied upon to justify taking any significant decisions for a 16 or 17 year old who cannot decide for themselves.

As the consultation paper correctly notes at para 15.10 it is also of limited utility in relation to younger children given that the ‘scope of parental responsibility’ is so poorly defined. I accept however that, given the need to locate the new scheme within the MCA 2005, the position of younger children is outside its scope.

Question 15-5: should a new criminal offence of unlawful deprivation of liberty be introduced?

Although proposed new criminal offences should always be approached with caution, the consultation does appear to have identified a genuine lacuna in the criminal law which ought to be filled.

Proposal 15-6: the Criminal Justice Act 2009 should be amended to provide that inquests are only necessary into deaths of people subject to the restrictive care and treatment scheme where the coroner is satisfied that they were deprived of their liberty at the time of their death and that there is a duty under article 2 to investigate the circumstances of that individual’s death.

The duty to carry out an interest should apply at least to all cases where the person is subject to the restrictive care and treatment scheme and is deprived of their liberty at the time of their death. Consideration should be given to extending the inquest duty to all cases where the person is subject to the restrictive care and treatment scheme, given that by definition they will have been subject to intrusive care or treatment by the state or its agents at the time of their death. There is no warrant for restricting the inquest duty solely to Article 2 ECHR cases – not least because (as in the recent inquest into the death of Connor Sparrowhawk, ‘LB’) the state agencies will often dispute that Article 2 is engaged.

Question 15-9: should people be charged for their accommodation when they are being deprived of their liberty in their best interests – and are there any realistic ways of dealing with the resource consequences if they are not charged?

The second part of this question is a matter for the relevant public authorities. On the question of principle, it is important to note that the care provided to disabled people in accordance with the National Framework for NHS-funded Continuing Healthcare is also provided free of charge. I agree with the suggestion that charging those deprived of their liberty by the state for their accommodation is unfair, essentially for the reasons given in the consultation paper – including the appropriate comparator in such cases.

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