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.

Month: November, 2015

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

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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.

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