'If you are lucky enough to get legal aid, you won't get to keep your damages unless you also get your costs paid by the wrongdoer, and that rarely happens in the COP because of the general rule and the fact that a DOLS breach is usually only one of various issues looked at in proceedings. And, even if you have got legal aid and it is worth pursuing, the courts can be very dismissive about asking for damages - often because it is said that there is no 'causation' - the person would have been in the care home even if the proper procedures had been followed - and because of the immense difficulty in showing that an earlier best interests decision was wrong, given how subjective such decisions are.'We've actually seen relatively few published judgments relating to breaches of the DoLS (Neary v London Borough of Hillingdon, 2011, of course being the most prominent example), but those cases are definitely out there. The interesting question is whether the Court of Protection is the only way to address these breaches of the DoLS, or whether the LGO could also offer some relief.
Eleanor Roosevelt, 1958
'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958
Tuesday, 26 June 2012
A few weeks ago a comment on the blog raised the possibility that in some situations it might be more beneficial for those who had been subject to unlawful detention as a result of a breach of the deprivation of liberty safeguards (DoLS) to seek relief from the Local Government Ombudsman (LGO) than the Court of Protection. The commenter highlighted that:
Friday, 22 June 2012
A series of recent court cases have continued to explore the boundaries of our legal rights to determine how and when we die. The case of Tony Nicklinson raises important questions about the right of disabled adults to be supported by professionals in ending their life. By contrast, the case of 'E', an anorexia patient, shows that capacity is an important 'gatekeeper' concept for autonomy over end of life decisions. But E's case also raises questions about how 'best interests' decisions regarding end of life decisions should be made. The influence of 'intuition' on best interests decisions introduces problematic legal and political issues around uncertainty and arbitrariness. E's case also raises intriguing legal questions about the legal status of Court of Protection 'declarations' of best interests which are not accompanied by an order directing that a particular treatment be provided.
Ten days without mobile phone reception or internet on honeymoon the West Highlands... My intention was to not even think about mental capacity whilst I was away, but unfortunately the novel I took with me had a subplot of unlawful deprivation of liberty in a nursing home and several interesting 'right to die' cases popped up in the news which I pondered whilst puffing up Munros. They concern, of course, the cases of Tony Nicklinson, and the recent Court of Protection case concerning the forced feeding of 'E', a young woman with anorexia nervosa, and I wrote about them here. This post, however, is a bit of a round-up of things I found in my inbox on my return.
In case you missed it, there's been a buzz about open justice this week, with Adam Wagner at the UK Human Rights Blog writing a great post on how the 'democratic deficit' in our courts isn't related to 'unelected judges' but about access to information. Adam argues:
...judges tend to come from the Bar. They are used to being a hired brain, squirreling away at clever written advice in the secluded surrounds of the Temple. That culture means that the courts resemble private members clubs rather than public fora where important decisions of social policy are being made every day.
This is no longer good enough. Judges and the Government fail to understand that in the internet age, open justice does not just mean opening the door to the courts. It means a completely new understanding of the old adage “Not only must Justice be done; it must also be seen to be done“.I agree! With rather good timing, the Centre for Law, Justice and Journalism at City University published their working papers from Justice Wide Open, an event earlier this year bringing together lawyers, judges, journalists and researchers to debate open justice in a digital age. Judith Townend, who organised the event, writes a summary of the topics covered on the Inforrm blog. There are papers by Geoffrey Robertson QC,the Master of the Rolls Lord Neuberger, Dr David Goldberg, Hugh Tomlinson QC, Emily Allbon, Nick Holmes, David Banisar, Heather Brooke, Mike Dodd, Adam Wagner, William Perrin, Professor Ian Cram, Dr Lawrence McNamara and yours truly.
Reports and resources
Various interesting reports, resources and articles found their way into my inbox whilst I was away, which might be of interest to others.
- The European Union Agency for Fundamental Rights (FRA) has produced two interesting reports lately. One relates to involuntary detention in EU member states, and makes frequent reference to the possible impact of the Convention on the Rights of Persons with Disabilities on detention under EU and Council of Europe law. Glancing over it briefly, I'm not sure it goes as far as some CRPD advocates might hope, but certainly it makes interesting reading and offers some comparisons between frameworks for involuntary placement in different EU states. The other report relates to the right to independent living for disabled people in the EU. The headline of these reports is 'Despite legislation, disability rights not realised in practice'. (H/T to @neilmcrowther for those reports, who contributed to the latter).
- The Mental Health Alliance have published a report reviewing the implementation of the Mental Health Act 2007. The report highlights several problems with the implementation of both the MHA and the deprivation of liberty safeguards, and is well worth a read.
- The Journal of Policy and Practice in Intellectual Disabilities has published a paper by Romijn and Frederiks comparing the regulation of restraint in various different jurisdictions. It was prompted by the case of Brandon, which readers may remember was a young autistic teenager who was 'tethered' to a wall by an order of a judge in the Netherlands. The paper is interesting, although in my view doesn't quite distinguish carefully enough between law and guidance (at least in relation to the UK), and a few important areas of law are not discussed, but still interesting reading. (And paywalled reading, sorry about that...)
- And there are some interesting free webinars from Browne Jacobson legal training on DoLS and health and social care, available here, they are well worth watching. Particularly if, as has recently been reported, training on the deprivation of liberty safeguards is becoming 'unaffordable'... It is interesting to ponder how 'affordable' DoLS training might become if the chances of litigation for unlawful detention were higher. But unfortunately the chances of litigation are themselves contingent upon good training and good practice to support use of the safeguards and appeals mechanism, so unhappily there is no obvious source of pressure to remedy this situation. But I digress -watch the webinars!
Worcestershire County Council are consulting on a very concerning policy for capping maximum expenditure for adult social care at the rate of care home costs. In effect, unless other means of support can be found, where the costs of care in a person's own home cannot be met for less than the value of care in a residential home, then a person will either have to move into a care home (by consent or coercion, one presumes) or live with unmet care needs. My instinct is that if they get this through, then other local authorities may follow and we should be extremely concerned about what this will mean for rights to independent living, to family life and to the likelihood of using detention frameworks to coercive people into cheaper care home accommodation against their wishes. (not to mention fettering, etc etc). I can think of several local authorities who have (at least in the past, when I worked with them) operated informal policies of this nature - "oh no, if she needs more than 4 homecare visits a day it's off to a care home...." However, it's quite bold to see a council seeking to make it an explicit policy, and if offers an opportunity to explain how restricting community care expenditure in such a way can have such significant repercussions on the rights of older and disabled people and their families.
My gut instinct is the only people this policy will be financially advantageous to are the community care lawyers of Worcestershire; I can't imagine how a rash of DoLS appeals as people are coerced into care homes, or judicial reviews relying on Article 8, will help Worcestershire County Council's finances. I am working with the Spartacus Campaign to produce a response to this consultation, and we would be very interested to hear your views and any help campaigning against this policy that you can offer.