Posts in the ‘Court of Protection’ 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.

6 months of a new ‘Deprivation of Liberty’: March – August 2014

Posted on: August 11th, 2014 by Jess Flanagan

I’ve written a lot on my team’s blog about the game changing Supreme Court judgment of what is known to all of us Court of Protection ‘geeks’ as ‘Cheshire West.’

I have been pretty silent on this blog, as my energies went on ensuring that our Clarke Willmott blog readers were kept up to date. Today, I have had the honour of having my piece hosted on the Family Law website, and thought I would take this opportunity to summarise my pieces over the past 6 months following the judgment in March. More for me to have a record of it all than for anything else. It has been an exiting, and increasingly busy 6 months and there is no certainty as to how it is all going to pan out.

I speak almost daily to IMCAs and RPRs who have seen referrals increase unspeakably; to Local Authority lawyers who are wondering how they are best to advise their client Adult Services departments to deal with backlogs of assessments for Standard Authorisations; and to care home managers who are just about realising the implications of it all (and hearing about others who still haven’t got a clue!. The press is now starting to get wind of the real cost involved and with the Supreme Court judgment resulting in most adults who lack capacity to consent to their care arrangements requiring their placements to be authorised, and it being abundantly clear that any deprivation of liberty in a supported living or independent placement which is paid for, or arranged by the state in some ‘non negligible’ way, must be authorised, this simple change in legal test has some really good but really frightening implications for Adult Services in England & Wales.

My colleague Joanna Burton introduced the judgment in her summary piece in March and following a flippant comment I made on twitter resulted in Simon Burrows from Kings Chambers coming along to our Bristol office in April to set out the initial implications of the judgment to a full house of health and social care professionals, private client lawyers, RPRs and IMCAs. I set out my review of that talk in another piece on the Clarke Willmott blog.

Two months after the judgment I was invariably talking a lot more about DOLS and what the statutory safeguards were there for. I was spending (and still do spend) a lot of time reminding care home staff, the individual who is deprived of their liberty and their families that a Standard Authorisation is NOT a DOLS Order and it is not something that can be ‘lifted’. It is a tough thing to explain to someone who feels detained, and to all intents and purposes is detained, but is actually deprived of their liberty because of the arrangements required to keep them safe. So I wrote about DOLS being safeguards, not imprisonment in order to try and spread the word…

Those first three months were so exciting that DOLS was the feature of our second edition of the Court of Protection and Health & Social Care Newsletter and there is a summary of what the House of Lords Committee’s report on the Mental Capacity Act 2005 in there somewhere.

I haven’t blogged about the Government’s response to the House of Lord’s Select Committee report because it was really quite sad. I think the most important thing for us to take away from it is that the statutory scheme isn’t going to change any time soon, and non means tested legal aid (that P is eligible for when challenging a Standard Authorisation in the Court of Protection)is not going to be available when P requires representation in the Court of Protection when authorisation is being sought for Deprivation of Liberty in supported, or independent living environments. I blogged about what I might like to ask the Government as a result. The story behind this was a senior partner in my firm was invited to an audience with the Minister of Courts and Legal Aid and asked if I had any questions. I did and I set this out for him to take with him. The minister cancelled. Perhaps he knew he was likely to face some really tricky questions…

So, this brings me nicely on to Thursday’s judgment and my piece published on Family Law today. Sir James Munby has produced guidance for Local Authorities to follow when making applications to the Court of Protection to authorise a DOL in placements other than care homes and hospitals. He will deal with other issues and provide more detail in due course, but this is a start.

Happy reading.

I am keeping a close eye on how all of this pans out in reality and especially in respect of how local advocates cope with the pressure and how the safeguards really do safeguard people, not imprison. So, if anyone has any experiences they want to share, please don’t hesitate to get in touch to chat it through.

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.

Deprivation of Liberty applications post Cheshire West: The President states the obvious, but does he give a solution?

Posted on: May 9th, 2014 by Jess Flanagan

The President of the Family Court, and Court of Protection – Sir James Munby, yesterday heard a series of deprivation of liberty cases following his decision in Cheshire West being overturned by the Supreme Court in March. This article in the Telegraph,  today explains how he commented on how the Court should be braced for a surge in application.

From reading the judgment and knowing that the court has taken this on board, we know that the Court of Protection is braced for a surge of applications to authorise an individual’s placement  in supported care & home placements. Personally, I’m still not convinced s21A applications will increase significantly (if P is in a gilded cage he may not wish to challenge any authorisation). But what I wanted was a solution to deal with the increase in applications? I’m hoping that he did but this article just doesn’t set it out. Hopefully word will trickle out shortly, but in the meantime I am aware that there is some consideration being given to a short form application for authorisations in supported living and independent placements.

Once that has been dealt with – the next step will be to lobby for non means tested legal aid for those types of applications, as well as s21A challenges.  

Going back to Press reporting of Court of Protection issues, as I more frequently do now, I am concerned again by the title of the piece. Not all people now found to be deprived of their liberty will be so against their will, as compliance in care is no longer a factor to be taken into account when considering whether an individual is deprived of their liberty. Another plea for the press to get it right!

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.