Posts in the ‘Community Care’ Category

Autonomy and the empowerment of the individual

Posted on: October 14th, 2014 by Jess Flanagan

This is a blog by my colleague, Joanna Burton, all about our Mental Capacity Conference on Friday 17 October at Clarke Willmott.

I am really looking forward to this event, and it marks a real step forward for our team as being experts in welfare cases in the Court of Protection. I have always been keen on sharing information and educating those who need to be aware of the Mental Capacity Act, and this event takes it one step further as we have leading experts in the world of capacity talking to us about how far we have come in the 7 years since it came into force.

Over to Jo….

On 17 October 2014 Clarke Willmott is hosting a one day conference ‘The Mental Capacity Act 2005: Promoting Autonomy and Empowerment’. Ahead of the conference Joanna Burton looks at the way legislation has evolved over the past forty years, placing individuals at the centre of the procedures that affect them.

Empowerment of the vulnerable individual lies at the heart of our work, whether that individual has capacity or is unable to make decisions relevant to his or her welfare, and whether we are acting on behalf of the vulnerable person, or for a family member, friend, carer or advocate. Professor Hugh Rickards will talk to us about his clinical experience of assessing capacity at the conference.

Over the last twenty five years there has been a gradual but consistent development in health and social welfare legislation putting empowerment of the individual at its core. The Children Act 1989 was, perhaps, the first step in this process, making the ‘welfare of the child paramount’; it is the right of the child to have contact with both parents not the right of the parents to have contact with their child.

The protection of human rights has been an important development and since the European Convention on Human Rights became enshrined into the law of England and Wales, Scotland and Northern Ireland in 1998, all individuals in the United Kingdom have their rights under that convention protected.

Under Article 8 the individual is protected from arbitrary or unnecessary interference from the state in his or her private and family life, and it can also provide leverage upon the state to provide services to ensure that P’s rights under Article 8 are not breached.

In the recent case of P (Appellant) v Cheshire West and Chester and another and P and Q v Surrey County Council [2014] UKSC 19 Lady Hale spoke of the ‘universal character’ of human rights and underlined that ‘people with disabilities have the same human rights as the rest of the human race’ She spoke further of the State’s ‘duty to make reasonable accommodation to cater for the special needs of those with disabilities’. Simon Burrows will be talking about this case, and its implications six months on.

Throughout the 1990s various pieces of anti-discriminatory legislation were passed, culminating in the Equality Act 2010. At the core of the Equality Act 2010 is the individual’s right to be treated equally and have equal opportunities irrespective of age, gender, disability, race, colour, creed or sexual orientation. Obligations lie with the employer, or the provider of services and ultimately the state to ensure that the principle is respected and acted upon.

In October 2007 the Mental Capacity Act 2005 came into force. Fundamentally the MCA provides the legislative framework to ensure that an individual who lacks capacity to make decisions is treated with the same autonomy and respect given to adults with capacity. Any actions or decisions made on behalf of P must be in P’s best interests. The Act promotes and, in certain circumstances, makes it a duty for an Independent Mental Capacity Advocate, an IMCA, to be appointed to be the voice of P. I would like to see an IMCA appointed for P when any major decision is being made, irrespective of whether other family members are willing to speak on P’s behalf. In my view an IMCA is the acknowledgement of the autonomy of P and should be a fundamental part of P’s armoury. Jakki Cowley and Sue Lee from ‘Empowerment Matters’ will be talking about their work as IMCA’s and their important research which has recently led to the publication of their ‘Guidance for Assessing Supporting and Empowering Specific Decision making’.

The Court has been at the forefront of empowering P. Jurisprudence has set the bar low for assessing capacity. Our key-note speaker, Mr Justice Baker has discussed (in CC and KK and STCC [2012] EWCOP 2136) maximising the entitlement of the individual to make his or her own decisions, however unwise they may be. Best interest decisions made by the court have tended to resist the risk averse decisions that might be made by a local authority and have enabled P to go on holiday or return home when risks may appear to others to be quite high; the case of Manuela Sykes which I discussed in May is a prime example. Mr Justice Bakerwill be our key note speaker at the conference on 17 October 2014 giving his thoughts on cases that have been before him recently.

The Court of Protection rules and procedures also place P at the centre of the case, requiring that P is served with any application to the court and that those interested in his or her welfare are also notified. In my view, however, it is an anomaly that P does not have to be joined as a party to Court of Protection proceedings. P is almost always joined in ss15,16 and s21A MCA 2005 health and welfare and deprivation of liberty proceedings, so for P to have potentially no part in proceedings where life changing decisions are being made for them, or where their liberty is at stake, this is in my view a breach of Article 5(4), Article 6 and potentially Article 8. It is our understanding that clarity on this issue is being sought as permission has been requested to appeal Sir James Munby’s recent decision in Re X and others (deprivation of liberty) [2014] EWCOP25 that P may not have to be joined in deprivation of liberty proceedings that do not fall under s21A MCA 2005. Watch this space.

Although I fully acknowledge the logistical and financial difficulties in P’s participation and representation in proceedings, in my view it is P’s fundamental right under Article 6 and rather than being brushed over, this needs to be addressed. If P lacks the capacity to litigate (and most P’s in Court of Protection proceedings do) he or she will need a litigation friend. There is a real shortage of people willing to act as litigation friend to P and the pressure on the Official Solicitor (OS) as litigation friend of last resort is overwhelming. Clarke Willmott has been in the forefront of encouraging and supporting advocates and RPRs to be litigation friends to P Sophia Roper from the Office of the OS will be speaking at our conference and we will no doubt cover this problem in discussions. Perhaps, as with the Court of Protection Panel Deputies, the court could consider setting up a panel of Litigation Friends.

The financial issue of P’s participation in the proceedings must also be considered. Court of Protection proceedings are very costly and few fall below £10,000 by their conclusion. Non means tested legal aid is only available to P in s21A MCA proceedings which challenge a DOLS Standard authorisation. Legal Aid for all other proceedings is means tested. We often act for individuals who have savings of less than £15,000, but more than the £8,000 legal aid limit. Until their savings have been whittled down in legal costs to below £8,000 we cannot apply for legal aid, and that is without taking into account a capital contribution they will have to pay if they have savings of more than £3,000. Non means tested legal aid is available for a child in child care proceedings, and we feel quite strongly that it should be available for P who lacks the capacity to litigate so that they can be properly legally represented in all proceedings concerning their life and liberty in the Court of Protection.

The Care Act 2014 comes into force in April 2015, placing “wellbeing” at its core and setting out that a local authority must have regard to “…the importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing”. In the words of Martin Luther King ‘ It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also’.

Laws and jurisprudence may not on their own change hearts but they can change practice. To properly empower our most vulnerable individuals we need to use all the resources available. Notwithstanding the austerity measures the legislation and our courts are clear that the rights of the individual are at the core of any process.

Legal Aid for Community Care

Posted on: August 10th, 2014 by Jess Flanagan

I remain really quite pleased that Clarke Willmott was successfully awarded a contract to provide legally aided Community Care advice in Southampton and Bristol. In one week I have been able to help two new clients in a way I wouldn’t have been able to before we had this contract.

At the sake of sounding like a broken record, I thought I would repeat what I said about legal aid on our Elderly Care and Court of Protection blog, as I am so proud of the work we can now do to help those who really need it:

Providing Legal Aid for Community Care matters

“From 1 August 2014, Clarke Willmott will be in a position to offer our clients legally aided advice in respect of Community Care matters. From challenging Social Services and Continuing Healthcare assessments, to advising on applications for Judicial Review and in the Court of Protection, our team may be able to assist you. Until now, we have only been able to provide advice when a case is already in the Court of Protection, or if a hearing in the Court of Protection will be required.

Our contract with the Legal Aid Agency will enable us to advise eligible individuals and provide support for them at best interests meetings. These may take place way before a court hearing is necessary and can provide assistance in setting out views and evidence, to try to avoid the need for any court application.

Jess Flanagan, an Associate in the Clarke Willmott Court of Protection team says: ‘Everyone in the team is delighted that we can now provide legally aided support to the public, especially at a time when the austerity measures continue to bite in the Social Care world. With access to legal advice when an issue arises, as opposed to when the case is before the court, many clients will be able to avoid the lengthy and sometimes exhausting court process.’

To be eligible for legal aid an individual must have gross income of less that £2657, disposable income of less than £733 per month (combined with your partner if you are living with them) and capital of less than £8,000. It is a complicated and rigorous assessment, so if you are unsure, please call Jess Flanagan on 0845 209 1160.”

In the midst of all the challenges faced by legal aid practitioners and those they try so hard to support, I am so proud of what additional support we can now offer.

The most sensible thing I’ve said

Posted on: March 9th, 2014 by Jess Flanagan

I don’t make a habit of referring directly to clients as I firmly believe in keeping private matters private. However, I have recently had the pleasure to meet such a charming young man and “say the most sensible thing I have heard in years” to him that, at least skeletally, I want to share our exchange with you.

His history and circumstances are irrelevant but suffice to say he has had a tough time over the past 4 years, cannot walk, needs support with all acts of personal care and aspects of daily living and there is evidence of exploitation from others and risk minimisation on his part. He tells me that his illness means he doesn’t have that long left to live.

Like many people before him, this chap has been assessed by services as lacking the mental capacity to make decisions concerning where he receives necessary care and treatment and is now deprived of his liberty under a Standard Authorisation, receiving that care and treatment in a specialist placement miles from his family. The story could belong to many vulnerable adults and these outline facts are no different to many we frequently see in Court of Protection judgments.

I will be sharing these comments with the parties and the court, so if anyone who recognises these circumstances and can identify him (and I have drafted this in such a way that only those with direct knowledge of the proceedings, not even the man himself, would have any idea who I am talking about), this is information that they will see anyway.

I listened to him clearly explain his background, his worries, his current misery and wishes and I advised him that due to his vulnerability, professionals have a duty to protect him from harm and meet his needs. I then went on to advise that the relevant law was not there to wrap him “in forensic cotton wool” (A favourite quote of mine from Mr Justice Hedley, paragraph 10 Re P [2013] EWHC 50) and explained to him the decisions in KK v CC v STCC and Manuela Sykes (see posts on the Sykes judgment and reference to supported decision making) and told him that both these ladies were allowed to go home from a residential placement, at least for a trial period.

I did so to illustrate the current judicial thinking in respect of protective decision making on behalf of people who may not be able to make decisions themselves, to give him some hope and to let him know that I understood and would support him in his application to challenge his circumstances. This is when he turned to his RPR and thanked her for introducing to me and, looking me straight in the eye said how those words which I will always now carry with me and that make my hard work worth it. He knows I understand him and tells me he trusts me. Being solicitor for P is such a unique and privileged position to be in. It also carries with it a lot of responsibility, but given his response to me and how driven I feel to fight for his right to be back with his family it’s a responsibility I welcome with open arms.

Human Rights Begin in the Small Places (BIHR #HumanRightsTour 2013)

Posted on: October 10th, 2013 by Jess Flanagan

I’ve posted elsewhere that the driving force behind my desire to be a lawyer was a comment made to me by a family friend; ‘to change the law, you have to know the law.’ When I was younger, I thought that my goal was going to be achieved by being a politician, and perhaps even the Prime Minister. Quite frankly, after growing up a little and realising that it really would be a huge and thankless task and perhaps one I didn’t have the constitution to tackle. I decided that I would focus my efforts where I could properly make an impact and that was for each of my clients and everyone who I could pass on some of my knowledge and experience to.

When I meet people, I introduce myself as a solicitor. When I’m amongst those who know what one is, i say ‘Social Welfare’ solicitor. When I’m not, I say I’m a ‘help people’ solicitor. I strive to remain faithful to that in every contact I have.

Today I attended the British Institute of Human Rights ‘#HumanRightsTour 2013 and had a great refresher of human rights law. I was reminded of my university days. The huge global Human Rights atrocities were not easy to study nor fully appreciate when in my early twenties and although I was fascinated, it didn’t spur me to want to tackle the huge scale problems that so many excellent people deal with on a daily basis. What it did do was set the wheels in motion for the career path I finally chose. I wanted to help people, but on a one to one basis.

I now have the benefit of over 6 years advising vulnerable people under my belt and experience of applying Article 8 (right to private and family life) and Article 5 (Freedom from deprivation of liberty) to situations involving real people that I know. Today we were left with a message from the driving force behind the UN Convention on Human Rights, Eleanor Roosevelt who quite rightly said:

‘Where, after all, do universal rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.’

Together with every single person who attended the tour today and most people I meet in the course of my role as a ‘help people’ lawyer, I strive to look in the small places and help those who need it everyday.

On a final note, Another thing I learnt today is that I actually do know and understand quite a bit about human rights and intellectual capacity. I might even be nearly ready to start helping to change the law…

#SaveUKJustice and Community Care Network meetings

Posted on: October 2nd, 2013 by Jess Flanagan

Since moving from Southampton to Bristol to start a new job I had to get to know my new surroundings, my new colleagues and make new friends. Today I realised another task I’ve been undertaking for the past 7 months and that is getting to know the networks of community care and social welfare organisations and individuals around me.

I speak to people, I attend seminars and meetings and I take up opportunities when they present themselves. Today was an example of how two of these opportunity collided into one, and I hope that as a result, a few more people understand what the real impact the cuts to legal aid will mean for the most vulnerable in our society. The ones who really need it. The people who are ridden rough shod by public authority decisions because they don’t fit in a specific set of criterion. The people who fall through the cracks and can’t ask for help themselves. Them.

When I first moved to Bristol, task #1 was to get to grips with moving from a legal aid environment to a corporate regional law firm. My roots are in high street and legal aid practice and as I am still able to offer some of my clients legal aid, I wanted to get to know who else in the area provided legal aid. I quickly got to know the lovely, hardworking and talented bunch at Avon and Bristol Law Centre. As the legal aid cuts bite deeper and deeper, law centres across the country are being forced to close. Avon and Bristol are determined to stay open. Not so that they all stay in jobs, but so that they can continue to help the thousands of children, young people, migrants, single mothers, victims of trafficking and vulnerable people who go through their door every year. They seek funding from elsewhere, but the cuts to legal aid, and the further proposals that are due to take effect soon are making it very difficult for them to stay open and able to serve those who need them.

I’ve tried to help where I can. If the Law Centre receives an enquiry on a subject that I can advise on, I will head down the road and see the client on a pro bono basis. This frees up the 1.5 community care solicitors to concentrate on work that brings in fees for them. The Law Centre also arranges quarterly network meetings for organisations, agencies and lawyers working within the realms of community care and social welfare in Bristol. I offered our offices for today’s meeting because all other options fell through. It was a good afternoon and I feel privileged that I was able to make a room available and take another pressure away from such a hard working group of people.

Whilst attendance today was low, we had a brilliant afternoon talking about community care law relating to children and young people. We had a talk from Caroline Miles from the Law Centre, who outlined the legislation and some of the hurdles she is having to go through at the moment, and the Safeguarding lead from Kids Company, which has just set up its first extra-London operation in Bristol. Business is booming for them and for other agencies who sent representatives today. They all say their job is getting more difficult and focussing a lot of trying to convince public bodies to do right by the young people who cross their paths.

Here comes the second strand. I am relatively active on twitter and i follow the SaveUk Justice and Save Justice UK campaigns. Last week i saw that Save Justice UK was looking for Ambassadors to encourage communities to sign postcards setting out concerns as to the further cuts to legal aid. Please see http://savejusticeuk.wordpress.com for more information. I had a ten minute discussion prepared. I didn’t use any of it, because as each topic of discussion came up in the meeting, I was able to make a point as to how,if the proposals to ‘transform legal aid’ came in as set out in the consultation, those jobs would become even more difficult and the people they were supporting would be left in an increasingly vulnerable state. The postcards were snapped up and signed, ready to be delivered to Nick Clegg later in the year.

Next week, my article about how the proposed cuts will impact on welfare proceedings In the court of protection will be published in the Elderly Law Journal and I will arrange for an executive summary to be posted here and elsewhere. I wrote it some time ago, but the fear of the further cuts and the damage they will do remains as strong as ever. Bringing people together who care and who can take action is one way to reinforce community and keep the support for those who really need it available and accessible.

I’m pretty pleased I’ve met such dedicated people within such a short time of being here.