Legal Update
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SEPTEMBER 2010 NEWSLETTER
SAFEGUARDING EDITION
Article 8 / Safeguarding / Best interest / Deprivation of
Local Authorities beware.
The warning shots were fired in the
case of Re GC & Anor [2008] EWHC 3402 (Fam) (unreported, 29th July 2008),
when Mr Justice Hedley said that the state should be cautious when intervening
in lives of others
“It seems to me that when one applies
the statutory provisions (MCA) the impact of them is that the State does not
intervene in the private family life of an individual, unless the continuance
of that private family life is clearly inconsistent with the welfare of the
person, whose best interests the court is required to determine.
The recent cases should cause local
authorities concern about their safeguarding practices (if they know about
them) particularly as in the case of G v E
the judge ruled that Manchester City Council should be publically exposed.
In the case of Re A (child) and Re C (adult) [2010] EWHC
978 (Fam) Lord Justice Munby issued guidance to local authorities that
they should approach investigations with:
sensitivity and a proper appreciation of the limited extent
of their powers’.
He also warned that “too often” they applied urgently to the
Court of Protection, without notice, to remove incapacitated or vulnerable
adults from their carers and that too often the courts granted such orders when
“seeming heavy
handedness is not easy to justify and can too often turn out to be completely
counter-productive”.
He said that Courts would not
tolerate a
‘culture or mindset
common among local authorities that they have the right to dictate to parents
(of both children and adults without capacity) what care practices they should
or should not follow in their own homes, in the absence of specific authority
from statute or a court.’
In particular, he made it clear that
simply providing support services does not give local authorities any rights to
"regulate, control, compel, restrain, confine
or coerce."
This should compel local authorities
to reflect on some of their safeguarding practices, procedures and perhaps,
even culture.
In the case of G v E,
Amongst the difficult issues raised were:
1. The possibility that
incapacitated clients may not have valid tenancy agreements
2. How this could affect their right
to housing benefit
3. That they may have to have a court
appointed deputy to sign the tenancy agreement on their behalf as the only way in
which they could legally hold a tenancy
4. There has to be a complete
separation between the ownership of the domiciliary care organisation and the
ownership of the property to avoid the risk that the care provided would amount
to a care home. As this would not be registered as a care home there would be
no entitlement to housing benefit and potentially the commission by the owners of
a criminal offence
5. The degree of control of the
lives of incapacitated people in domiciliary care may amount to a deprivation
of liberty, especially if family or carers objected to their package of care.
This deprivation could only be authorised by the Court of Protection.
6. That local authorities do not
sufficiently listen or take account of the views of carers or families.
7. That the Court would be willing
to publically ‘name and shame’ those authorities
In contrast,
I am acting for a local authority in a currently unreported case where a man
with learning disabilities is a significant
sexual risk to children and vulnerable adults. His risks are being very
successfully managed by a specialist domiciliary care organisation. As long as
he is with a carer, he is safe. To support the care plan, the Court of
Protection at the request of the local authority, has given permission to
deprive him of his liberty if and when it is in his best interests and to
prevent harm. So, for example, when he wants to have contact with his family,
the local authority can control the contact required. This allows a much higher
level of potential risk to be successfully managed in the community.
Another element of safeguarding is the misunderstanding of
the levels of control and decision making that potentially exist under the
Mental Capacity Act. Health and social care professionals sometimes stand back
and watch harm and damage occur on the basis that people have the ‘human right’
to make their own decisions. This may be true where they have capacity (which
is time and decision specific) but not if they lack capacity to make those decisions.
I would suggest the following MHA/MCA safeguarding checklist:
1. Is
there evidence that capacity has been assessed?
2. Has
a decision maker been identified who can make decisions that involve restraint
which is defined to include a restriction, but not deprivation, of liberty?
3. Has
this linked in with the local authority obligations under sections 47 and 48 of
the NHS and Community Care Act? (Assessing and meeting need)
4. Has
thought been given to whether the Mental Health Act (including guardianship)
could provide the necessary support or control? This could apply to both
capacity and incapacity. (E.g. If a person is required to reside in a
particular place by the guardian, it is a criminal offence (punishable by
imprisonment) to remove them from that place.)
5. If
there is (or may be) a deprivation of liberty in a domiciliary care setting or,
there are irresolvable disagreements about best interests, this would require
an application to the Court of Protection.
PETER EDWARDS LAW –
JUNE 2010 NEWSLETTER
I
am getting a significant number of requests for assistance from Local
Authorities and their legal departments especially in relation to Deprivation
of Liberty issues and best interest in the Court of Protection. A case in
which I am currently involved could have massive implications for supported
living schemes. G
v E (2010) EWHC 621 (Fam) —The Court of Protection found that E
lacked capacity and was being deprived of his liberty at a supported living
tenancy by the local authority. They had breached his Article 5 rights by doing
so without seeking a Court of Protection order They had also breached his
Article 8 rights by actions including a failure properly to involve his carer
in decision making. The case is not yet concluded but will have to address
issues such as how an incapacitated individual enters into a tenancy agreement
and whether extensive support would mean that it was in fact a care home.
There
are two important training events the first one in Hoylake, the
second in
Wednesday
9th June 2010 – An
Intensive Introduction to the Mental Health Act – PELT, Hoylake,
Merseyside
Wednesday
16th June 2010 - s.117
Aftercare - King
As
human rights lawyers we are pleased with the recent publication from the Care
Quality Commission called ‘What to expect if your rights are restricted
under the Mental Health Act’ which contains information for patients about
the Mental Health Act and also how to complain.
Talking
of guidance, the GMC has produced ‘Guidance for doctors: Treatment
and care towards the end of life: Good practice in decision making’.
For
those of us of a certain age, the BBC documentary ‘ A History of the
Madhouse’ brought some memories flooding back. This can still be seen on
BBC iPlayer as can the moving story of a number of people who had direct
experience of being on the receiving end of the Mental Health Act in a
programme called ‘Sectioned’
You
may recall that due to a drafting glitch, there was a problem in
With
regards to some new case law
R (SP) v SSJ (2010) EWHC 1124 (Admin) transfers from
prison to hospital under s.47 particularly near the end of a sentence came
under judicial scrutiny. Interestingly the court said that it would be willing
to review theses decision with anxious scrutiny, as transfer at the end of a
prison sentence extends detention. In this case it was clear that the Home
Secretary did apply her mind to the criteria. Perhaps it is no coincidence
therefore that the MHCS bulletin published on 29/4/10, deals with absolute
discharge and the transfer to hospital of prisoners who are close to the end of
their sentence
For
those of you who involved in Court of Protection work City of
The Upper Tier of
the Tribunal has had an active month handing down two significant
decisions.
DL-H
v Devon Partnership NHS Trust (2010) UKUT 102 (AAC) — (1)
The Tribunal gave inadequate reasons for its decision not to discharge
the patient; this decision was set aside and a re-hearing directed. (2) In
principle, and in this case, it would not be fair and just to restrict the
scope of an appeal to the grounds in the application. (3) Discussion of the
meaning of mental disorder and its classification for the purposes of the
Mental Health Act. (4) Detention is authorised by reference to the twin
requirements of treatment and protection, moderated by the word “necessary”;
that demanding test provides ample protection without the need for any
additional consideration of proportionality. (5) Discussion of ‘appropriate
treatment test’ in context of personality disorder and refusal of treatment.
RM v St Andrew's Healthcare (2010) UKUT 119 (AAC) — (1) When considering the ‘interests of justice’ limb of rule 14(2), the key test to be applied is whether or not non-disclosure of the document or information would allow the patient to make an effective challenge to his detention. (2) On the facts, without knowing that he was being covertly medicated the patient would be unable effectively to challenge his detention; the non-disclosure decision was set aside and re-made. (3) Non-disclosure orders should not only be drafted in terms of documents, but also should deal, in a precise, clear and exhaustive way, with the information which should not be disclosed
PETER
EDWARDS LAW NEWSLETTER APRIL 2010
Within the last few days there has been the
important case G v E which raises the possibility that
there are significant numbers of people (especially those with LD) in supported
living who are deprived of their liberty. Roger Hargreaves, a consultant
to
Client E has a severe learning disability (his
expressive and receptive language skills had been assessed as being
developmentally equivalent to an 18 - 24 year old) and had resided with F a
foster carer for 10 years - who is described as "mummy". He does not
have capacity to decide where to live. The only contact with family was with
occasional visits from E`s sister G - but who had not seen G for over a year. E
attended a special school and had occasional respite care at J residential
home. The school in particular was struggling to manage E`s challenging
behaviour which until recently was not evident whilst in the care of F. In
September 2008 F applied to become Es adult foster carer. This was positively
received and accepted as there was universal agreement that F was a
"dedicated and skilled carer". However she created tensions caused by
her "forthright views" towards professionals - an attribute the judge
held to be in Es best interest to have a carer who "genuinely cares for
him" and fights his corner.
In March 2009 the LA received a safeguarding
alert from the school. It was reported that E had made comments about
"sleeping in the wardrobe" and "don`t lock the door" during
episodes of challenging behaviour. On 6 April, after E and F returned from a
trip abroad, a social worker examined the premises and found no wardrobe. The
next day the LA concluded that E should be placed in respite care while the
safeguarding referral was being investigated. On 11 June F was told that E
would not be returning home and on 15 June he moved to a specialist residential
housing unit. The investigation was not completed until 15 October - the
results of which were "inconclusive".
The Judge made a declaration ruled
that E had been unlawfully deprived of liberty at both
placements (which constituted a breach of Article 5 given the absence of a
legal framework) - they had "complete control over Es care and
movements", restrictions on visits from F and family and the decision by
the LA that he would not return to F - the removal of E from F`s care was
deemed an "arbitrary act" and the LA had made "grievous
errors" in not following the DoL process (one being a residential
establishment and the other seemingly being supported living which arguably
would have required a direct court authorisation under s. 16(2)(a) MCA - the
Judge debated the precise status of the second placement coming to no firm
conclusions) No blame was attached to the social worker as she had
received a "paucity of training" on MCA - the responsibility for the
"blatant errors" he stated "higher up the line of
management"
The Judge further held there had been a
"serious breach" of Article 8 in not involving G or F in these
decision making processes and not considering the best interests
framework in the safeguarding process ie the proportionality of the removal
decision weighing in the balance the potential effect of removing E from a
carer acknowledged to be skilful and dedicated in meeting Es needs. "There
was, in my judgement a deplorable failure to take into account the close
relationship between E and F, the need to sustain that relationship, and a
consequent failure to arrange contact for several months".
The threshold for the removal of an
incapacitated adult from his family is stated to be where there is a
"demonstrated need" to protect a vulnerable adult "from abuse or
the real possibility of abuse" (Re MM (an adult) [2007] EWHC 2003 (fam))
and such a planned deprivation should be "appropriate and
proportionate". The Judge ruled that no weight could be attached to
statements E allegedly made as expert evidence reported that E can only
understand one word in every sentence, merely echoes what people have said
("echolalia"), repeats information he doesn`t necessarily understand
and had made proven incorrect allegations against professionals in the past. No
weight could be attached to them unless clearly substantiated by collaborative
evidence.
The problem for the Judge now is that 12
months has passed and there had been demonstrable improvement in E`s independence
skills whilst in his present placement due the person centred plan and access
to community activities and outdoor pursuits - but coinciding also with
medication being administered
Both the Official Solicitor and the independent
social worker recommended a staged programme of increased contact and return
back to F and LA to offer F training in restraint (the Judge described the
social worker and team managers witness statement to the court that they
thought the LA had a policy forbidding restraint in foster placements as
"lamentable" as no such policy existed ) . The Judge
surprisingly ruled contrary to the view of the independent social worker
and Official Sollicitor with a declaration that E should remain in the present
placement until they reconvene in July at which time the independent
psychiatric report would be available - he feared E having to move twice if in
July he was to rule that he should stay permanently at his present placement.
The LA was directed to consider supports available to F in case he should rule
in that direction ‘
There is also the important 117 case
of R (on the application of M) v (1) HAMMERSMITH & FULHAM LONDON BOROUGH
COUNCIL (2) SUTTON LONDON BOROUGH COUNCIL : R (on the application of
HERTFORDSHIRE COUNTY COUNCIL) v HAMMERSMITH & FULHAM LONDON BOROUGH COUNCIL
(2010), QBD (Admin) (Mitting J), 3rd March 2010. I am waiting for the full
judgement but the headline tells us that the case seeks to clarify which
authority is 117 responsible after discharge.
On the proper construction of s.117(3), the
accommodation and aftercare costs for individuals who had been discharged back
into the community following detention in hospital for treatment under s.3 were
to be met by the local authority where he was resident, or to which he was
discharged by the hospital. The deeming provision of the National Assistance
Act 1948 s.24(5), that an individual was "resident" in the area in
which he lived immediately before becoming a patient at the hospital, made no
difference to the meaning of s.117.
Who
could not have been moved by the recent BBC 2 documentary on Why did you Kill
my Father. It was surprising that it did not alert us to the mandatory
provisions in the Domestic Violence Crime and Victims Act placing
statutory obligations re victims (restricted and unrestricted cases) on
managers, AMHPs, RC and Tribunals.
The
new provisions in the Mental Health Act 2007 in relation to age appropriate
services for children and young people came into force on the 1st
April. Perhaps this will encourage us all to look afresh at the complex
interrelationships of law when providing mental health and incapacity services
for this group. Please look at the brochure for the training event featuring
children and young people taking place on the 17th June below.
THE CHRISTMAS NEWSLETTER
(December 09)
WHAT IS NEW AT PETER EDWARDS LAW?
We are one of the very few exclusively specialist
mental health / incapacity law practices in
This has
been a particularly exciting year for us.
We hold mental health and community care law
franchises and are one of the few practices to have been awarded a Category 1
(Excellent) Peer Review Audit by the Legal Services Commission. Peter Edwards
is a former nominee as Mental Health Lawyer of the Year.
In addition to the work that we do representing those
who are detained under the MHA, the Directors of Peter Edwards Law are spearheading the growth of
our incapacity law department. Not only should everyone plan for their
incapacity (Lasting Powers of Attorney and Advanced Decisions to Refuse
Treatment) but the Mental Capacity Act, if used effectively, can resolve
disputes about those who lack capacity. Sadly, we have far too many cases where
elderly or learning disabled people have been exploited or abused by others.
We also provide mental health and incpacity legal advice for local authorities,
care homes and private hospitals.
WHATEVER HAPPENED TO
THE NEW MENTAL HEALTH ACT?
The ‘new’ Mental
Health Act is up and running. What was all the fuss about? Has anything really
changed? The RMOs are now called Responsible
Clinicians (RCs) and the ASWs
are Approved Mental Health Professionals
(AMHPs) but aren’t they are the same people doing
the same job?
Yes, we now have community treatment orders (CTOs)
and whilst we would most probably would have had a straight discharge from our
section this time last year we now remain under the MHA in the community.
Other than that, it is just the same, isn’t it?
Well, no actually, it isn’t.
Parliament passed legislation that is several steps
ahead of current practice.
How long will it be before managers drive change?
Nurses, psychologist, social workers and OT’s can all be RC’s, once they are
approved. The fact that they come a lot cheaper than doctors will surely not be
a driver! How long will it be that we say ‘My nurse is my RC?’ As such, they
will be the one who renews the section, who turns up to the tribunal and who
discharges the section. How different the world might look then.
We are used to the social worker turning up to
consider whether we should be sectioned. Of course they do, they are the AMHP.
How would if it feel if your CPN turned up to complete the section? Nurses as
AMHPs, nurses as RCs nurses taking over key functions. Who says the new MHA changes nothing?
You can now only
be detained on a section 3, 37 or CTO if ‘appropriate
medical treatment is available’. This means
that if it is not appropriate or not available, use of these sections is not
possible.
The definition of mental
disorder has changed. From the more limited
definition s.1 now defined it as ‘any disorder or disability of the mind’. This
for the first time includes all personality disorders.
And what about those CTOs? The numbers are far
outstripping government expectations, 2,134 were issued from November 2008, when they came into force, to
March 2009. The government expected there to be 450 in
MHRTs have been abolished in
Who said the changes are not significant? What this space
ILLEGALITY THE MCA AND DOLS
(BUT NOT THOSE FROM SANTA)
When will the
penny drop? Professionals who care for those who lack capacity and who have
complete control over their lives most probably are depriving them of their
liberty. This is much more widespread than many realise. If that is the case
then any best interests decisions that they make are unlawful unless they have
followed ‘procedures prescribed by law’.
i.e. the MHA or DOLS. If the care is a hospital (e.g. an old age ward) and the person is receiving treatment for mental disorder, (treatment includes nursing care) the recent case of GJ means that it is probable that a Deprivation of Liberty Authorisation cannot be given as the Mental Health Act takes precedence to the MCA. Section 3 triggers s.117 which in all probability guarantees free non means tested aftercare for life. Illegally.
_____________________________________________________________________________
LATEST NEWS FROM
THE PUBLIC GUARDIANSHIP BOARD
Plan for the future – choose your power of attorney
now, Statement by the Public Guardian Board, 2nd November 2009
The Public Guardian Board
(PGB) has called for every adult to actively consider having a Lasting Power
of Attorney in place. Speaking at the launch of their Annual Report, chairwoman
of the PGB Rosie Varley OBE said: “Preparing for the future is too important to
leave until the last moment. Knowing that a person you know and trust will take
care of your affairs, should you become incapable of doing so yourself, ensures
peace of mind for you, and avoids your loved ones having to go to court. Setting
up a Lasting Power of Attorney is now easier than ever. The Office of the
Public Guardian (OPG) had a difficult start, but this year we have witnessed a
marked improvement in performance, with the OPG demonstrating a willingness to
respond to feedback from customers and stakeholders and to address problems as
they become apparent. One of the results of this is the new Lasting Power of
Attorney forms that are easier to complete and cheaper to activate. It is
important that the OPG continues to raise awareness of the importance of LPAs
and I hope that as the number of applications increase, so the cost of
activating them can reduce. However, the OPG must ensure they have capacity to
deal with an increased workload, to ensure the recently improved service levels
don’t suffer.” The Board also announced it is looking to broaden its remit to
monitor the implementation of the entire Mental Capacity Act (MCA), including
by the Court of Protection and medical and health care practitioners.
Ms Varley said: “The
Mental Capacity Act is a ground-breaking piece of legislation that impacts on
every citizen and fundamentally alters the relationship between those providing
and receiving care. In its first year the Board focused on scrutinising the
OPG’s performance. This year we have widened our scope and started considering
how the provisions of the Act are being implemented on the ground to see
whether they are making a real difference to people’s lives. The Board has
maintained its interest in the Court of Protection, which has now transferred
to Her Majesty’s Court Service (HMCS). It welcomes HMCS plans to review the
Court of Protection’s administrative procedures, and encourages the prompt
implementation of any changes that are required to ensure that processes are
efficient and accessible, including through a reduction in fees for Court
services from HMCS.”
Every adult should
actively consider having an LPA. To start the move towards this ultimate
objective, the Board recommends the following:
· There needs to
be a concerted drive to raise awareness about the MCA and the systems it has
put in place to empower citizens and protect the vulnerable. A targeted effort
should be made to reach those most in need, for instance, those with variable
capacity or those who are at risk of losing capacity in the next ten years, or
those in high risk occupations.
· Access to the
benefits of the MCA should not be dependent on cost and the Board hopes to see
a further reduction in the cost of registration of an LPA as the volume of
applications increases. The Board encourages a mirrored reduction in fees for
court services from HMCS.
· Communications
with service users should remain a priority with improvements delivered across
all areas of activity. A planned and structured approach to communicating
effectively should be developed and realised by the OPG.
· The Department
needs to note the critical importance of the capability and stability of the
Office’s information technology systems to the service it provides.
· The findings of
the research commissioned by the OPG as part of the Review of the Mental
Capacity Act Implementation Project should be acted upon as quickly as possible
with the necessary resources being provided once actions are prioritised and
agreed.
· The various
bodies and organisations involved in administering, implementing, and regulating
the MCA should work together to champion the principles of the Act. The
Government should examine a way to co-ordinate the relevant public sector
bodies to make a real impact.
Lord Chancellor responds to recent media coverage
about the Office of the Public Guardian and the Court of Protection, Office of
the Public Guardian, 5th November 2009
Media have raised some
important issues and concerns on the emotive subject of who has the authority
to manage a person’s affairs if they lose their mental capacity. We all know
how important it is to plan for the future. Having a Lasting Power of Attorney
(LPA) or a previous version, called an Enduring Power of Attorney (EPA), in
place should be as common and natural as making a will. It ensures that a
person of your choosing will be able to manage your affairs should you lose
capacity, be it as a result of dementia, mental illness or an accident
But without an
appropriate power of attorney in place, someone losing mental capacity needs to
be protected. This has always been the purpose of the Court of Protection. In
these circumstances, the court will often appoint a ‘deputy’ to make decisions
that must be in the persons’ best interests. That deputy is usually a family
member or close friend but sometimes there may not be anyone who is able or
willing to take on the role, or the court may have reason to believe that other
arrangements are more appropriate. In such circumstance a Local Authority or
professional may be appointed as deputy. In the majority of cases the appointed
person will be free to invest, spend and manage the funds in ways they feel
most appropriate for the individual.
The vast majority of
applications to appoint a deputy are supported by family members and are
processed by the court without any hearing being necessary. But in some cases
there are disputes and hearings are required. These court sessions are
conducted in private as highly personal matters are often discussed. Cases
where vulnerable people have their funds misappropriated by unscrupulous
individuals is something we need to guard against. The Office of the Public
Guardian (OPG), which was set up by the Mental Capacity Act 2005, supervises
all deputies and has the power to investigate allegations of abuse. But of
course the onus should always be on prevention.
Media reports have
claimed that to have deputies monitored by the OPG costs individuals £800 a
year. This is only true in 2.5 per cent of cases. In 72 per cent of cases, the
fee is £175; in 15 per cent of cases it is free. But no system is perfect and
we are always looking for ways to make it as effective and efficient as we possibly
can
The Mental Capacity Act
2005 came into force in October 2007 and brought with it many improvements. The
new Court of Protection generally allows deputies more freedom than in the past
and people have more choices than ever on how to plan ahead for the future. But
we always strive to be responsive to customers, so we have now made the Lasting
Power of Attorney forms cheaper to register and simpler to complete.
Since October 2007 most
deputies have been able to keep money in any account they choose and access it
with minimal restrictions. This is a significant improvement on the previous
system, when greater restrictions were in place. If a person does have an order
they feel is too restrictive, they are free to apply to the court for a new
order, although any decisions would be a matter for a judge.
When the new measures in
the Act were first introduced, there were teething problems. The majority of
the 3,000 complaints mentioned in last week’s article relate to delays at the
OPG arising from very high volumes of work -the result of an unexpectedly high
level of public demand to register the new LPAs. But there have since been big
improvements in the OPG’s service to the public, highlighted by positive
comments in a report that will be published by the independent Public Guardian
Board, tomorrow
In addition, the
judiciary, court staff and court users are all agreed that the time is right to
look at our court forms and processes. I have therefore agreed for Sir Mark
Potter, President of the Court of Protection, to set up a committee to review
the current Court of Protection Rules to ensure they provide an efficient and
effective service.
Lord Chancellor and Secretary of State for Justice
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