In my view there are lots of problems with the safeguards - too numerous to list them all here, but I'll discuss them in later posts no doubt. The main problems highlighted by the case of Steven Neary are that the 'safeguards' themselves are not very effective when families have difficulty understanding or accessing their rights. I've discussed this in more detail in a guest blog in Community Care magazine. Not the least of Mark's problems was finding expert help from a solicitor - some told him (wrongly) he couldn't bring his case to court as he wasn't entitled to legal aid. Even then, he rang over 50 before he found one with any expertise in the case. In this BBC report Mark Neary says 'In the first seven months of Steven being away, I couldn't get any help at all', so he started up a Facebook group, went to the press, and support started to flood in. But why wasn't there any help from the professionals? You shouldn't have to go to the press, to Facebook, to access your legal rights.
There are still lots of unanswered questions about this case. Here's a few that I will be looking out for in the May judgment, when there will be a full judicial inquiry into what happened:
- Did Hillingdon council act lawfully when they refused to let Steven return to his father's care?
- Was the deprivation of liberty authorisation issued when it should have been - or after they had already begun detaining Steven?
- Was the detention ever in Steven's 'best interests', and did they fully assess all the other options - most importantly, did they give serious consideration to whether Steven could have been cared for at home? Detention must be necessary to prevent harm, and it must be proportionate to the likelihood and severity of the harm. The courts have previously indicated that family placements should be considered as a priority.
- It's also important to remember that, unlike under the Mental Health Act, under the deprivation of liberty safeguards people cannot be deprived of their liberty for reasons of 'public protection'. The only reason a risk to the public might be relevant is if that risk might 'rebound' on the person themselves and affect their best interests.
- Do local authorities have a duty to provide additional resources (above and beyond those normally required by community care law) to support people to remain with their families so they are not deprived of their liberty?
- If detention wasn't in Steven's best interests, does this mean Hillingdon and the care provider, or just Hillingdon, have breached Steven's rights? Can they seek compensation?
- Were Mark, the father's, Article 8 rights to family life breached?
- Did Hillingdon comply with all the procedural requirements of the safeguards - to keep Mark (as Steven's representative) informed of the process at all stages, to provide him with copies of assessments, to inform him of his right to support from 'Independent Mental Capacity Advocacy Services' and refer him if necessary?
- The dispute was rumbling on all summer, by all accounts, so why didn't Hillingdon refer the case to the Court of Protection as a matter of urgency? Why did it have to wait for Mark to take the case there himself?
- The most important question of all: Why did Hillingdon do it? Why did they refuse to let Steven return to his home? How could there be such divergent opinions of his 'best interests' that a judge sent him home almost immediately in December, when the DoL was still authorised? To the best of my knowledge, this is the first time this has ever happened since the DoLS came into force. Was this a case of professional misjudgement - or did something else go wrong?
Even if someone is in a care home where the safeguards could be applied, there is no guaranteeing that the supervisory body will agree that deprivation of liberty is occurring, even if the family object. This may be more the case following yesterday's judgment on MEG & MIG (P & Q) in the Court of Appeal (discussed in my last post), where judges held that unless the person themselves was objecting they were probably not deprived of their liberty. Where people have severe illness or disabilities, whether or not they are objecting can be quite subjective. If supervisory bodies decide they aren't, once again the family would have no recourse to the safeguards.
Even if the supervisory body agree that someone is deprived of their liberty, it was suggested by the Mental Health Alliance that some were deliberately appointing family representatives who didn't oppose the placement. This is really sneaky. Unless you are the 'representative' you don't have the right to see the assessments, to be kept informed about the process, to advocacy, legal aid, etc etc. Ironically enough, Mark Neary was 'lucky' (if you can call it that) - because Hillingdon both authorised Steven's detention, and made Mark the representative.
Holey and problematic as they are, without the safeguards, Mark Neary could have been pretty stuffed. He wouldn't have been able to get free legal representation - nor advocacy services, and despite a petition and Facebook campaign with thousands of supporters, despite the best efforts of bloggers like Anna Raccoon, despite the support of local councillors and thousands of 'tweeters' behind him, it's not at all clear that Steven would have been home by Christmas. Nor that you'd be reading about the case in your newspapers today.
(Added 3/3/2011: You can now find the court judgment allowing the press to report here)
[Edit 23/05/2011: I've written a more up to date summary of key issues I hope are reported well in the press here, it's also worth reading the comments underneath for a sense of other considerations from other perspectives]