Posts in the ‘Safeguarding’ 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.

#JusticeforLB – an end to indifference: An 8 day journey to #107days

Posted on: July 4th, 2014 by Jess Flanagan

Justice for LB

I do not believe that I am indifferent, nor have I ever been, in respect of issues affecting the most vulnerable adults within our society. By the very nature of my job, I am not indifferent. I checked the dictionary – ‘Having no particular interest or sympathy; unconcerned.’ I’m full of interest and sympathy and quite frankly, very concerned about these issues.

I confidently told a client recently that I had never ‘lost’ a challenge to someone’s placement authorised by the Deprivation of Liberty Safeguards. I’ve just managed to see him moved to a placement closer to his home after 6 months in a rehabilitation unit he hated being in, located miles away from his family.  We are now well on the way to ‘proving’ (the joys of rebutting the evidence that has rebutted the presumption of capacity…) that he has capacity to make his own mind up about where he lives and receives care. I work hard to empower adults to make their own mind up and if they really can’t because the presumption of capacity really is rebuttable, I use all I can to argue them to a position closest to what they want. My clients are rarely disappointed.

Trying to work out how I can take my first steps to being part of #JusticeforLB, looking at Connor’s manifesto I realised that where I can and do make a difference is here: ‘Prevention of the misuse/appropriation of the mental capacity act as a tool to distance families and isolate young dudes.’ I could write books on this topic and have hinted at it elsewhere in posts over the past 18 months. It infuriates me when the MCA, ‘best interests’ and ‘safeguarding’ is cited as justification (often without evidence to back it up) to keep vulnerable adults away from their loved ones, often at times when they need their support the most. I spend a lot of my time trying to pick this apart for my clients; often to success, but not without a lot of sadness and distress on the way caused by the very process created to ‘protect’.

The purpose of me blowing my own trumpet is to illustrate that by the very nature of what I do, and the effort I put in to achieve results for my clients, I don’t believe that I am indifferent.

In July last year I was referred (by the incredible Lucy Series) to Sara’s blog: ‘My daft life’. The day I visited Sara’s site was 5 July 2013 and what I read made my heart sink straight into the pit of my stomach.

‘Our beautiful, hilarious, exceptional dude was found unconscious in the bath in the unit before a planned trip to the Oxford Bus Company.’

Like everyone I felt terribly sad and shocked for Sara and her family. I started to follow Sara on twitter shortly after, I read a couple more of her posts and I learned that her son had died due to the indifference of a system we expect to protect and care. We later learn it was preventable (the stomach sinks even further). Scrolling back through some of the previous posts, I realised the efforts she had to go to in order to see her son, to give him any semblance of the normality they had shared as a family for the majority of his life. It sounded similar to many of my cases, and many of the cases you read about in Court of Protection judgments. But the way it ended was not the same. Connor missed out on the chance to go back to his family because he was left in the bath. Alone.

I then didn’t do anything else. I didn’t engage with Sara on twitter. I didn’t tweet about #justiceforLB and I didn’t get involved with the movement that was so rapidly sweeping across social media in my world.

I saw it. I didn’t engage. I have recently developed a gnawing feeling that by not engaging in the way I do with other campaigns and issues in my world (a mental capacity, mental health, health and social care law world) by blogging, tweeting and chatting about it, I was indifferent to Connor’s death.

So, to make sure that anyone reading this can question their indifference, this post is for you, and for Connor and Sara. It is also for Nico and his mother and for everyone who is working so tirelessly to obtain #justiceforLB and #justiceforNico and justice for just about everyone who falls victim to the system that is supposed to protect, empower and care for learning disabled dudes.

This post tracks the period of 8 days in June – from day 1 when I recognised my indifference, accepted it and then did something about it.

The next stage was to make sure I got a piece ready in time to contribute to the #107days campaign. I’ve just made it, but as Sara has assured me on several occasions; it is never too late.

So, I dedicate this post, in the nick of time, to the final day of #107days, almost a year to the day I read about Connor and to the fight that many, many family members have on their hands in respect of their loved ones.

Day 1 – the LALY awards:

I was a finalist in the Social & Welfare category of the Legal Aid Lawyer of the Year Awards 2014 and therefore had the joy of attending the ceremony where I was surrounded by many of the legal aid greats that I had ‘grown up’ reading about, hearing about and seeing their names in judgments and in the press. See my colleague, Jo Burton’s post where she applauds legal aid and some of the awesome people we saw.

Amongst all this, we heard about Charlotte Haworth Hird and how she had successfully won an independent investigation into Connor’s death. I didn’t know that and became acutely aware that I really should have done. See, I knew that the Trust had produced a report, I knew that Sara was not happy with it, but I hadn’t read the report and I hadn’t engaged in the social media storm that filled my twitter feed daily. That evening, I tentatively drafted my first ‘#justiceforLB’ tweet congratulating Charlotte. I was interested.

As I’ve said above, I knew about Connor and I knew about the campaign #107days. I’m ashamed that I didn’t know what it was all about. Until that first tweet, I’d not read further than those first few posts back in July 2013.

I was starting to move away from indifference. It felt good.

Day 6 – #107days day 87: Swan Advocacy Conference in Trowbridge – ‘Statutory Safeguards: Protection or Control.  The role of independent advocacy in finding the balance’

Jo and I were asked to present a solicitor’s perspective on this question. We chose to present a discussion entitled: ‘Protect and Empower: a legal perspective.’ The reason we chose that is because the basis for much of the domestic legislation used to protect and / or control a vulnerable adult (depending on which way you look at it) is based in Human Rights legislation, most of which is founded in caring, protecting and empowering citizens.

We decided to talk about empowerment as we will often use the Mental Capacity Act 2005 to promote someone’s ability to make life-changing decisions themselves, or at least have a pretty big say in what they want to happen about them. We often use this in our work to as a tool to counter decisions that to the individual feel paternalistic, over-protective and controlling, in order to support his or her aims, wishes and feelings. The role of an advocate in these types of situations is hugely important and we felt that by sharing the legal framework with advocates, they would be more confident to empower those that they support.

The day was ably chaired by Mervyn Eastman, in whom I know I have made an ally in the fight against the cuts to legal aid for those who most need it and who kept the day to order, and provided a wonderful touch of sensitive humour at the times when it was most needed. I also met Graham Enderby (a genuinely lovely man) – the foster carer of Mr HL –whom we have to thank for the Deprivation of Liberty Safeguards in the UK. It was incredible to hear him bring alive the man behind the case that as a lawyer, I know so well.

To end the day, which quite frankly was a true show of the passion, love and dedication professionals in this world have for the work we do in such difficult financial times, Dr Noelle Blackman presented on the issue of ‘Death by Indifference.’

This excerpt from Swan  Advocacy’s website summarises it better than I could:

‘Finally Dr Noelle Blackman from Respond ended the conference with an incredibly moving presentation on the dramatic consequences that ‘indifference’ can have on the lives of people with a learning disability – particularly in assessment and treatment units.  Noelle began the presentation with a beautiful montage of pictures showing  Connor Sparrowhawk  at his happiest – surrounded by his loving family having fun.  

Noelle went on to highlight the tragic cases such as Connor and Nico which demonstrate the tragic impact of indifference.’

As the tears fell whilst watching the montage for the first time, I truly accepted that I had been indifferent to this campaign and to this social movement (because I really believe that it is that!) for the past 11 months.

Well, no more I thought. On the train home from that event, I tried to rationalise my inaction. Questioned why I didn’t get involved sooner. I started to have some answers, but the Eureka moment didn’t come until Day 8 of my journey.

Day 8 – Face up to your mistakes and the DOLS conference 

The week ended with a trip up to London to attend Cardiff Law School’s Deprivation of Liberty Safeguards conference. It. Was. Incredible. It was fascinating to see Lucy (of The Small Places) and Dr Phil Fennell give our DOLS regime a ‘Human Rights Act Health Check’ (I think it is a little unwell) in such a masterful manner, to pick up tips about how I could apply Article 8 more frequently in my Court of Protection cases, and generally just to be surrounded by LOADS (and I mean loads) of professionals involved in the world of the MCA and DOLS. I also got to meet Mark Neary, see Graham again and I was able to meet and speak to Sara. What a week of social welfare law ‘celeb stardom!!!!’

Paul Bowen QC (a lawyer I hold in very high regard) dedicated his talk on that day to #Day89 and that gave me the green light to fully appreciate that there was no need to be worried about holding back any more.

Never one to do anything particularly quietly, or reverently, what I did about it was apologise to Sara. And not in the way some of us in the days of advanced technology apologise over text, twitter or email, but face to face. I had the opportunity so why not take it? I had the real privilege of meeting Sara and telling her about my indifference. I’m sure I garbled it and I am sure it made me feel a lot better than it did Sara, but there we go – I had owned up and started to do something about it. But I didn’t want it to end there.

I promised to write about it and although it has taken some time – here it is.

Day107 – Why and what next?

So – why was I indifferent? Why was I seemingly unconcerned with the campaign (I don’t think you’ll get me to admit I had no sympathy) and why didn’t I have any particular interest in getting something out there sooner? I think it was based in fear. A reluctance of being over political on social media and worrying how that might somehow interfere with the work I do.

Every organised event I attended within those 8 days exposed Sara’s campaign to me through professionals, ranging from my peers from the legal profession, academics, counsellors through to those who have experienced tragic loss and family trauma by the indifference of services. That gave me the confidence to step away from my fear and the indifference and do something about it. I thought owning up would be a start. This post was the next step and I have some ideas about the next thing to do…

But for now, I leave you with this. Throughout those 8 days I came to accept that whilst I might have initially been indifferent to this particular campaign through fear and some selfishness, overall, I’m not indifferent to the cause. On (my) Day 6 the Government published it’s response to the House of Lords Select Committee Report on the Mental Capacity Act 2005. This is not the post to be dealing with this report in any detail, but suffice to say I think that the government has quite a few more days of self discovery to convince us that it is no longer indifferent to improving the lives of the most vulnerable within our society – particularly the lives of learning disabled dudes.

Educating those who need to know about the MCA is one thing – action is quite another. Day107 is only the beginning.



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.

Mental health and the Health and Social Care Act 2012

Posted on: April 18th, 2013 by Jess Flanagan

Since the Health and Social Care Act 2012 (the Act) came into force after a very swift passage through Parliament, steps towards the new commissioning organisations taking on full responsibility on 1 April 2013 have been in full throttle.  Before the majority of the Regulations supporting the Act came into being, I considered how the changes may affect my particular practice, which focuses on the care and support of mentally disordered and vulnerable adults who lack mental capacity to make decisions themselves and specifically, those who may be deprived of their liberty.

Prevention of Mental illness should be promoted too

Section 1 of the Act, in force since 27 March 2012, states that ‘The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement: (a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of physical and mental illness.

This replaces the similar duty of promotion contained within the National Health Service Act 2006, which intended only to secure improvement, yet not to prevent, mental illness. The difference in wording is minor, but denotes a real recognition of the importance of treatment of mental illness, before individuals reach crisis point.

On a first glance, this could be taken as being another step in the right direction towards person centered healthcare provision because each locality has its own profile and its own set of needs and GPs are often the first point of contact for patients. In cases brought by patients trying to enforce duties to provide services set out in the 2006 Act, the Courts have generally not interfered with how these ‘target duties’ ought to be fulfilled and have always considered arguments from the Primary Care Trust (PCT) on behalf of the Secretary of State concerning lack of resources when considering how or whether the duty had been fulfilled in any particular case. Other than considering whether a Clinical Commissioning Group (CCG) on behalf of the Secretary of State has acted unlawfully in public law terms the Courts are generally unlikely to continue not to interfere.  

So, in terms of individuals being able to enforce these duties, the Act may not be of much help. But in terms of recognising that prevention is better than cure I think that this is a step in the right direction. I am aware that a large number of mental health hospitals being closed down means that increasingly only the most unwell are being provided with hospital beds for treatment. If work is done to prevent as many crises happening, then the mental health system could perhaps start to maintain itself more evenly

The new landscape of health care provision in England

What the Act does on a broader scale is to establish a new NHS; it represents the largest shake up of the public health structure since its inception in 1948.  The Act is supported by Regulations, the majority of which will take effect on 1 April 2013. It is an interesting time for the Health Service in England as the majority of responsibilities for commissioning health services will be taken further away from Central Government and put into the hands of clinicians.

Interestingly, in one area of health and social care involving individuals with mental impairments, which is an area of where we frequently assist vulnerable adults – the responsibility for overseeing a legal framework established to protect mentally unwell individuals who are deprived of their liberty is to be transferred solely to Local Authorities.

Despite consistent objection to the Bill by health care professionals and legal commentators, the Act became law on 27 March 2012 and since then has been careering towards a very new system being in place. Recently, Regulations have been issued in order to establish exactly how the newly formed organisations should function, what are their roles, duties and responsibilities. As well as introducing public health responsibility to Local Authorities (for issues such as anti-smoking, obesity, vaccinations etc) it removes the Commissioning bodies currently responsible for the organising and buying of £60 – £80 billion worth of care for patients from hospitals and other healthcare providers and replaces it with a clinician led organisation. The Strategic Health Authorities (SHAs) at regional level and 152 Primary Care Trusts (PCTs) at local level will be replaced by around 212 local CCGs, which will be largely be made up of GPs. The CCGs will operate at local level and will be supported by, and held to account by a new national body called the NHS Commissioning Board, which is to take on its full statutory functions from 1 April 2013.

Competition between providers will be encouraged and Regulations have set overriding objectives to ensure that the needs of the people who use the services are secured and the quality and efficiency of the services are improved. Integration of services (health and social) is also required, together with the requirement that any commissioner of health care services must be transparent and proportionate and providers should be treated equally and in a non discriminatory manner.

Failure to comply with the Regulations can result in action by ‘Monitor’, the body established in July 2012 that currently regulates NHS foundation trusts and will be developed into an economic regulator to oversee aspects of access and competition in the NHS sector regulator. We are yet to see to what extent this will drive up standards. We are encouraged to see that there is a mirror duty of co-operation with the Care Quality Commission (CQC) and that the role of the CQC is strengthened. From the perspective of health and social care provision, this is encouraging. Our understanding is that Mental Health hospitals appear to be more robustly investigated due to the existence of Mental Health Commissioners and the CQC has recently published its 2011/2012 Annual Report highlighting where improvements are necessary. Such thorough, informative and useful reports of other care providers and hospitals would be welcomed and remaining optimistic – perhaps the changes brought in by the Act will ensure this.

Deprivation of Liberty Safeguards – transfer of Responsibility

The DOLS framework was incorporated into the Mental Capacity Act 2005 in October 2007 following a decision of the European Court of Human Rights (ECHR) in 2004, which determined that individuals were being held in care homes and hospitals in the UK against their will, without a Human Rights compliant framework in place. As a result, the law was changed and established a framework that applies when someone is placed in a care home or hospital and cannot consent to being there themselves because they are assessed as lacking the mental capacity to do so. If the individual is saying that they want to leave or if their movement is being controlled or restricted within that placement, it may be that they have been deprived of their liberty. If this is the case, then their placement must be ‘Authorised’ by the Supervisory Body responsible for the care home or hospital.

The Supervisory Body was, under the previous legislation, either the PCT or local authority responsible for the hospital or care home that the individual was held. The hospital or care home is referred to as the Managing Authority. If concerned that an individual may be deprived of their liberty within their home or hospital, the Manager of the Managing Authority would have to request a Standard Authorisation (or if necessary an Urgent Authorisation to begin with) from the Supervisory Body who would put in place a series of assessments to determine whether an individual is deprived of their liberty, whether they are eligible to be deprived in that way and whether it is lawful.

The framework provides protection to the individual deprived of their liberty by way of establishing a process of review to ensure that the deprivation is in accordance with Article 5(4) the European Convention on Human Rights (ECHR). The individual can make an application to the Court of Protection (or to the High Court in the most serious of cases) for a review of his or her circumstances if they do not agree that they should be deprived of their liberty in that way under Section 21A of the Mental Capacity Act 2005.

Further information relating to Deprivation of Liberty safeguards (DOLS) can be found here and recent developments in the case law will be covered in more depth in a forthcoming series of articles coming up on our elderly law blog in the near future.

Schedule 5 of the Act amends all laws affected by the changes in the structure of the NHS. With the abolition of PCTs, the responsibility for any future Standard Authorisations will lie with the local authority where the individual has ordinary residence. CCGs will retain the responsibility for any matters that were previously held by its equivalent PCT.

To assist local authorities and [CCGs?] to manage the practical changes, The Social Care Institute for Excellence (SCIE) has produced a good practice resource setting out a suggested timeline for handing over responsibility to ensure a smooth transition of responsibility from PCTs to Local Authorities and how the CCGs will remain as the commissioning arm of the services provided to those who are assessed as incapable of making health and care decisions themselves . It sets out in its introduction the following helpful key information: 

  • Primary care trusts (PCTs) will be abolished from 1 April 2013.
  • The supervisory body responsibilities held by a PCT will be transferred to the local authority where the person has ordinary residence.
  • Each hospital managing authority will need to continue to actively understand the wider requirements of the Mental Capacity Act 2005.
  • Each hospital managing authority will need to become more familiar with practice concerning ordinary residence.
  • In preparation for the transfer, the ‘sending’ PCT supervisory body will need to identify the ‘receiving’ local authority for each patient subject to a Standard Authorisation. This will not necessarily be the local authority in which the hospital is situated.
  • Each local authority will need to be prepared to receive applications from hospitals in Wales or any part of England.
  • Clinical commissioning groups (CCGs) will be responsible for commissioning services in hospitals that comply with the Mental Capacity Act and the Deprivation of Liberty Safeguards.
  • CCGs retain responsibility for dealing with matters relating to authorisations granted by PCTs prior to 1 April 2013.

As a Solicitor who has represented many individuals and family members in cases involving a deprivation of liberty and legal challenges to the same, I welcome the transfer of responsibility. Although this may cause some problems in the first instance: ie  the inevitable clash of personalities as health care professionals in the PCT hand over yet more responsibility to Social care professionals; the rush to review any individuals who may have slipped the net (no bad thing) before the transfer is made; the invariable lack of additional funds made available to already stretched Local Authorities to cover the additional case load., having responsibility all under one roof will promote consistency of approach and will enable local authorities, with local responsibility for care homes and hospitals in their remit, to respond to local need more cohesively.

Only time will tell

Rightly or wrongly, we are where we are and the new system takes effect next week. There are many criticisms that have been and will continue to be levied against the new structure and the regulations, which are supposed to reflect the Government’s commitment to cut NHS administration costs by a third.  But as with any whole scale change it is impossible to know how it is going to work in reality. There are many huge changes that work well in reality, but there are also some costly overhauls of systems that end up being pushed under the carpet and quickly forgotten about. The Government will not be able to hide this if it results in being a huge mistake. Will it save money? Will it ensure that the vulnerable are better protected? The optimist in me wants to say yes – but the proof will be evident in time.