Following LAG’s conference in November last year, Jean Gould, specialist legal trainer and consultant, describes a selection of the speeches and sessions, emphasising the concerns of practitioners in the light of recent case-law and proposed legislation.
Steve Hynes, LAG’s director, in his welcome, set the context for the conference – how to provide access to justice effectively against the impact of austerity. Stephen Knafler QC, who chaired the conference, followed the theme, referring to the recent Care Quality Commission report on the state of healthcare and adult social care.1The state of health care and adult social care in England: an overview of key themes in care in 2011/12, available at: www.cqc.org.uk/sites/default/files/media/documents/cqc_soc_201112_final_tag.pdf.
He said that the increasing number of people in need of long-term care attests to the importance of adult social care and he posed the question of whether the growing practice in Germany of deporting older parents to cheaper care in Eastern Europe and Thailand could happen here.
Mrs Justice Parker of the Family Division set out some of the ethical and legal problems confronting the Court of Protection in upholding the welfare of vulnerable people. She talked about the scope of deprivaton of liberty safeguards (DoLS), pointing out that the argument that any placement without consent required safeguarding under DoLS did not reflect the intention of the Mental Capacity Act 2005, while monitoring of placements of vulnerable adults was an important welfare issue that went wider than DoLS. She cited, with reference to cases she had been required to determine, the difficulty in balancing risk and autonomy and even in deciding where autonomy really lay in some situations.
Parker J expressed doubts about the effectiveness of advance directions, in that they are unable to reflect or truly represent the current moment when medical treatment is needed. Finally, she reminded the conference of the importance of case management and, particularly, the need to remember that vulnerable clients are subjects, not objects, of court hearings. She stressed the importance of ensuring that orders of the court are explained to clients and their families as soon as possible.
Conference participants expressed worries that the Court of Protection’s lack of resources was impacting on access to justice.
Particpants split for two sessions to attend two out of five masterclasses led by experienced practioners on topics under the title ‘Excellence in community care’.
Making and defending personal welfare applications to the Court of Protection
This masterclass was a very practical session, with detailed information about running cases, obtaining legal aid and costs issues. In particular, the masterclass looked at how to get cases to court in light of the limited resources of the Official Solicitor. Speakers stressed the importance of looking at other options (because the Official Solicitor has become a remedy of last resort), including:
•obtaining pre-litigation independent expert evidence to try to avoid litigation where possible;
•the possibility of advocates, including independent mental capacity advocates, acting as litigation friends; and
•the possibility of issuing on behalf of the client without a litigation friend and asking the Court of Protection to appoint one.
Community care and equality: using the public sector equality duties
This masterclass was a useful assessment of where the public sector equality duty (PSED) cases have got to and where they might go from here. Two stages to the process were defined:
•The duty in Equality Act s149 to have due regard to the relevant factors is not a Wednesbury question; the principles involved are now relatively settled in case-law.
•The scrutiny of the decision itself is subject to Wednesbury principles.
In the community care context, the due regard necessary in a case involving vulnerable people is very high (R (Hajrula) v London Councils  EWHC 448 (Admin)
, 28 January 2011 at para 69). The reference in R (South West Care Homes Limited and others) v Devon CC and Equality and Human Rights Commission (intervener)  EWHC 2967 (Admin)
, 7 November 2012 to using the UN Convention on the Rights of Persons with Disabilities (‘the disability rights convention’) to inform the PSED is an exciting development, as is the use of PSED arguments to challenge aspects of ‘contracting out’, including during the procurement process. The stages of the procurement process – who can bid, followed by evaluations of bids to identify the preferred bidder – mean that timing of an application for judicial review requires close attention.
Mrs Justice Parker of the Family Division delivered the keynote speech at the conference
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Whether or not a change of provider will make a difference gives rise to a number of questions, including a consideration of the opportunity to make things better as well as negative impacts.
Speakers suggested that the PSED is harder to use in the context of an individual rather than a macro decision. However, it is applicable to individual cases, notwithstanding the obiter comments in R (McDonald) v Kensington and Chelsea RLBC  UKSC 33
, 6 July 2011;  4 All ER 881.
Law reform: draft bill
Following an outline of the draft Care and Support Bill by Simon Medcalf (Bill Manager, Department of Health), various speakers from the voluntary sector outlined their response to the bill in a panel discussion. It received a cautious welcome from all the speakers, particularly for its holistic approach and the centrality of the well-being principle. Sue Brown from Sense described the need for critical support, but also stressed the importance of campaigning to ensure that adequate funds are made available at the next spending review to ensure that the controversial national eligibility threshold is adequate to meet the needs of adult social care – a concern echoed generally by speakers and from the floor of conference. There was a suggestion that the disability rights convention should underpin prevention and the eligibility threshold.
Deprivation of liberty
Barrister Alex Ruck Keene focused on the unsatisfactory state of case-law on what amounts to a deprivation of liberty and, given the extent of uncertainty, the delay (until October 2013) in the Supreme Court hearing the cases of P (otherwise known as MIG) and Q (otherwise known as MEG) by the Official Solicitor their litigation friend v Surrey CC and CA and LA and Equality and Human Rights Commission (intervener)  EWCA Civ 190
, 28 February 2011 and Cheshire West and Chester Council v P (by his litigation friend the Official Solicitor)  EWCA Civ 1257
, 9 November 2011. In the interim, he recommended the use of precautionary authorisations and a broad view of deprivation of liberty. He pointed out the discrepancy now between UK DoLS decisions and those of the European Court of Human Rights, where the underlying question is, ‘Is the person free to leave?’.
The other panel members, as well as endorsing these concerns, also spoke of the cumbersome and unworkable nature of the current system (Roger Hargreaves, Mental Health Alliance DoLs Lead), particularly the reliance on the Court of Protection, which is time-consuming, cumbersome and costly. However, the alternative of a system more like the mental health review tribunal risks a comparable erosion of legal aid costs to the point at which the quality of representation is seriously degraded (Sophy Miles, Solicitor Specialist, Mental Health Tribunal Judge). Phil Fennell of Cardiff Law School expressed serious doubts about the comparator approach articulated by Lord Justice Munby in Cheshire West and Chester Council v P (above), particularly its compatibility with article 5 of the European Convention on Human Rights (‘the human rights convention’) or with article 14 of the disability rights convention, arguing that it must surely be a breach of article 5 of the human rights convention to say that someone is less entitled to its protection because his/her disability has already deprived him/her of liberty.
Participants echoed panel concerns, including who is being safeguarded – is it the individual’s human rights that are protected or is it institutional back-covering? Sara Brunet from the Equality and Human Rights Commission outlined the commission’s current criteria for funding cases and particularly for bringing cases in the name of the commission. She asked for possible referrals of DoLS cases.
Personalisation and resource allocation systems
This panel discussion highlighted the fact that resource allocation systems are not specified in the Care and Support Bill and are problematic in practice. Issues raised by panel members and participants were:
•the lack of personalisation in the systems;
•that as a tool to create equity their effectiveness was questionable; and
that the duty to give reasons highlighted by the Supreme Court in R (KM) (by his mother and litigation friend JM) v Cambridgeshire CC  UKSC 23
, 31 May 2012;  WLR (D) 171 was crucial.
Paul Bowen QC wound up the day with a paper asking whether there was a legal right to independent living. He concluded that there was scope to argue that recourse be had to article 19 of the disability rights convention as an aid to interpreting the human rights convention. He said that it was essential to press the case for an enforceable right to independent living in order that, as human rights law continues to evolve, this element can become an integral part of the ‘family of human rights’.