This blog is my contribution to airing issues in those areas in which I have usefully overlapping expertise: Autism, Law, Education, Social Care, Health and Criminal Justice.
Some of my Care Act focussed posts are also available on my guest blog at Schwehr on Care
But here I also blog about broader issues.
Feel free to contact me if you would like to discuss any of the issues I raise further or if you have questions or topics you would like to see me post about here.
Authorising Deprivations of Liberty: Can we safely ignore “private” situations?
As those working in social care will know, care providers and councils are already overwhelmed and struggling to ensure lawful authorisation of all care situations involving Deprivations of Liberty following the broadening of the definition of ‘Deprivation of Liberty’ by the decision of the Supreme Court in Cheshire West. The current situation is so bad that four councils are seeking a judicial review of Government funding for DoLS.
The Cheshire West decision was important and revolutionary for disability equality, establishing that disabled people are entitled to the same rights as everyone else and should not have their liberty infringed without careful, independent review and legal recourse, no matter how ‘normal’ and pleasant the circumstances of their care. Legally speaking (Storck 43 EHRR 96) there are 3 components which are required for a situation to require formal legal authorisation in order to comply with Article 5 ECHR. These are: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.
In situations involving those who lack capacity to consent, requirement (b) is satisfied. Cheshire West widened the scope of situations which now meet (a). And now, in a recent case, the scope of (c) has been called into question.
In Staffordshire County Council v SRK & Anor, Mr. Justice Charles considered whether, when someone’s liberty is removed in the course of a privately funded care package in the client’s own home (in circumstances which met the criteria for (a) and (b)) the Deprivation of Liberty is imputable to the state. The full judgement is extremely complex and examines the issue in depth. For practitioners and councils, the important information is that he concluded that, under certain circumstances such “private” situations are imputable to the state. This means that providers should be informing councils of the situation and either or both of the provider or the council should be applying to the Court of Protection for a welfare order.
In this case it was held that the involvement of the courts in awarding Personal Injury damages and the Court of Protection itself in appointing a deputy to administer those damages was a sufficiently active form of state involvement to create a responsibility on the state (through its positive duty to seek to uphold the Right to Liberty) to require the state to seek legal authority for the detention.
He clearly indicated that this judgement would apply to all future cases in this class and that future personal injury damages awards should take account of the additional costs involved in seeking Welfare Orders in similar cases.
In coming to this conclusion, he pointed out that “in a number of such cases P may well may not have the support of family or friends who take an active role and interest in P's care and life.” (paras 71 & 72) and, therefore, it falls to the state to ensure that the rights of the individual are protected.
This case widens still further the circumstances under which a deprivation of liberty is imputable to the state and, thus, outside of a Care Home or Hospital, requires authorisation by the Court of Protection. Estimates contained in the judgement suggest that the result will be at least an additional 250-300 cases requiring welfare orders.
However, this is unlikely to be an end to knock-on consequences of the application of the Cheshire West decision in practice.
In pre-Cheshire West case law, Re A and Re C  EWHC 978 (Fam) 64, it had been established that care circumstances created by a family within their own home were not imputable to the state. However, it is difficult to see how this case does not raise the possibility or even probability that the ultimate result in an equivalent case might now be different. The continuing application of Cheshire West in practice seems destined to reduce to the level of mere awareness the role of the state which is sufficient to render objective circumstances which deprive someone of their liberty imputable to the state and thus a potential breach of Article 5 which can only be remedied by means of formal legal authorisation (the only option for which is currently by means of a welfare order from the Court of Protection for situations which fall outside of the DoLS framework).
According to one strand of Charles J’s reasoning in this judgement, mere knowledge through safeguarding and/or regulatory processes is not sufficient to render an objective deprivation of liberty imputable to the state and thus an Article 5 Deprivation of Liberty. However, if we follow the other strand of reasoning, that of the Bournewood gap, it is difficult to see how arbitrary detention can be protected against in cases where mere awareness is the limit of state involvement, and thus there is at least the potential for a future ruling that, as a result of the widened definition of deprivation of liberty created by Cheshire West, the positive obligation under Article 5 requires the state to provide a domestic regime of law, supervision and regulation to authorise even entirely private deprivation of liberty situations such as that in Re A & Re C .
Councils and care providers would, therefore, be well advised to err on the side of caution and avoid assuming that they do not have to take steps to seek legal authorisation of a deprivation of liberty in even the most apparently “private” of circumstances once they are aware of their existence. Under the current circumstances of a massively overstretched system, this will not be immediately welcome news. However, the fundamental principle that all detention of those who lack the capacity to consent should be subject to independent scrutiny and review is very much to be welcomed. It can only be hoped that additional cases will add further to the pressure to resolve the current legislative and funding provisions to catch up to the modernisation of the law in this area by the courts.
The recent appeal against Charles J's judgement by the Secretary of State for Justice, Secretary of State for Justice v Staffordshire County Council & Anor , was dismissed. The Court of Appeal unanimously upheld the judgement, confirming that, for situations which fall outside of the current DOLS arrangements, even where the deprivation of liberty is not directly imputable to the state, a welfare order from the Court of Protection will be necessary to fulfill the positive obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty. The appeal confirmed that other social care frameworks such as CQC inspection and Safeguarding Responsibilities are insufficient to fulfil this responsibility.
SEN transport for 19 to 25 year olds: do councils have more responsibility than they think?
Any law firm representing a local authority at SEN tribunal who might feel inclined to gloat over yet another recent win against parents in the field of SEN law might want to think twice. Not only because the SEN system should not be about 'winning' and 'losing' (see the storm of condemnation that Baker Small attracted following its recent inappropriate tweet), but also because of the Care Act.
At first sight the case of Staffordshire County Council v JM  seems like a potential money saver for local authorities and very depressing for young adults with Special Educational Needs, their parents and advocates. The parents of H, a 21 year old young woman with an EHC Plan, had won their appeal at the First Tier Tribunal (SENDIST) who had required the council to provide transport to and from the educational placement named in the plan. However, the council appealed to the Upper Tribunal and the Upper Tribunal’s judgement makes quite devastating reading from the parent’s point of view.
Firstly, it was held that SEN tribunals can’t find transport (for those of any age) to be either a special educational need (on the basis of the wording of the statute which specifies that these must ‘arise from a learning difficulty’) or special educational provision (since extensive previous case law had established that a journey cannot be part of educational provision).
Now this isn’t too much of a problem for young people of compulsory school age since there is an extensive separate transport duty under Schedule 35 of the Education Act 1996. Despite the ‘raising of the school leaving age’, those of sixth form age form yet another category of their own which I will not address here.
However, for adult learners (those beyond sixth form age) the situation is entirely different from that of both the younger two groups. The Education Act duty regarding transport for this group is to be found in s.508F Education Act 1996 (as amended by Children and Families Act 2014). But, as the upper tribunal pointed out in its second blow for parents, this is outside the jurisdiction of SENDIST anyway so cannot be challenged through the tribunal system and remedy in respect of issues around transport can only be sought through judicial review.
To further compound the depression of parents, the upper tribunal nevertheless went on to consider whether a council was compelled by the s.508F duty to provide transport for those with EHC Plans in this age group. They concluded that it does not create a free standing rule that transport for those with exceptional needs must be included in an EHC Plan. They also pointed out that the duty itself is very weak in terms of specific duties owed to an individual. This is because it is a general duty. It doesn’t say “if they consider it necessary in the particular case” , it says that councils must make such arrangements for transport “as they consider necessary” “to facilitate the attendance of adults receiving education” …
So far so depressing for parents, and, potentially, money saving for councils. However, this is the point at which all those concerned with Education Law would do well to stand back and consider adult social care law.
We can only speculate as to the detailed facts underlying this case (as the full judgement does not contain any details of H’s needs). However, under the Care Act, it seems very likely that a young person in this position would meet at least two eligibility criteria: of being “unable” (remembering the broad definition of “unable”) to achieve the outcomes of “accessing and engaging in work, training, education or volunteering” and “making use of necessary facilities or services in the local community including public transport, and recreational facilities or services”. These would be having a consequential significant impact on the young person’s wellbeing, at the very least in terms of “participation in work, education, training or recreation” (s.1 Wellbeing definition). Therefore, councils with young people aged 19 to 25 with EHC Plans should be assessing their social care needs under s.9 Care Act and considering carefully whether they need to provide transport under s.18 Care Act in order to meet a young person’s eligible social care needs. This would seem to offer a more fruitful option for resolving what would otherwise be a startling and problematic gap in the legal framework around meeting the needs of those of this age group accessing educational placements named in EHC Plans.
DOLS reform: Interim update, interim position
Today the Law Commission has published an interim statement on their current thinking on reform of the Deprivation of Liberty Safeguards. Anyone who has followed the saga so far will be aware that the initial proposals put forward for consultation by the Law Commission received a decidedly luke-warm reception from the government. Mostly the government's position seemed to be that the proposals were too expensive. Oh and they didn't seem too keen on the idea that protection of an individual's fundamental human rights and freedoms should involve anything remotely resembling law either!
The response put the Law Commission in a tricky position. How far to go in fighting for a strong legal basis as the only defence of the vulnerable? How far could projected costs be cut whilst still retaining anything approaching adequate safeguards?
Today we got some hints as to the way the wind is blowing.
Substantially simplified and somewhat watered down proposals.
The Commission is teetering on the fence as to whether to stick with its original tribunal proposals or retain the jurisdiction of the Court of Protection. Having experienced how quickly the fairness and adequacy of tribunals can be undermined by being severely underfunded I am hoping like mad they will ultimately plump for the latter.
Out has gone the multi-level/multi-environment proposal in favour of a slimmed down scheme focussed narrowly on deprivation of liberty (article 5) and the attempt to introduce serious protection for rights to family life (article 8) has been scrapped.
The most worrying changes are:
- that the proposed role of Approved Mental Capacity Professionals (beefed-up Best Interests Asssessors) has been scaled back
- responsibility for "making the case" shifts to the commissioning body (from the care provider)
These changes reduce independent scrutiny whilst increasing the responsibility on those commissioning the care to protect the rights of those receiving it. In a world of austerity-led commissioning and care planning where knowledge and understanding of the law is not deeply embedded and 'human rights' has been turned into a dirty term in public discourse, I have reservations that this will be enough. Those who know their case law will be all too aware that, historically, it hasn't been.
The Commission has held fast though to its insistence on legally enforceable rights to advocacy. This is a potentially encouraging safeguard, but it remains to be seen whether it will survive the ultimate taking forward of the final proposals by a government with strong cost cutting motivations and little respect for (or understanding) of the relevance of law. Even if it does, the usefulness will depend on well trained, knowledgeable independent advocates. And in an advocacy market driven by short-term contracts and driving down of prices, it will be difficult to maintain and grow the needed workforce.
Even if proposals similar to those outlined today were implemented, the onus would be on friends, family and advocates to know their legal rights and act to enforce them. With such poor knowledge and understanding of human rights and the Mental Capacity Act amongst those working in social care, advocates and the public at large, it seems frustratingly inevitable that little improvement will ensue.
It is hard to blame the Law Commission. They are trying to walk a precarious tight rope in a highly adverse climate. They need to focus on what is realistically achievable and hope for the best. We have yet to see the final proposals and I am sure they will do their best to make them as legally robust and sound as they think they can get away with. I am much more dubious, however, about the odds that a system with any legal teeth will ultimately be passed into legislation in the current political climate.
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