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20.Apr.2011

Birmingham City Council breached disability discrimination laws as it sought to limit its adult care budget, a High Court judge has ruled.

The families of four disabled adults challenged the local authority’s decision that any needs that were not “critical” would no longer be provided for after 1 April 2011.

Birmingham had carried out a consultation on the proposals as part of wider efforts to reduce its overall budget, and the plans were approved by the Council at meetings on 1 and 14 March this year. Lawyers for the families claimed that the local authority’s proposals did not promote equality under the Disability Discrimination Act 1995.

They also argued that the consultation process carried out by the council failed to meet legal requirements in a number of areas – particularly its lack of clarity in relation to which groups would be affected, and what the options for those people who would have their care package removed were, according to claimant firm Irwin Mitchell.

In an interim judgment Mr Justice Walker, sitting in Birmingham, has now declared the council’s budget unlawful in relation to adult care. A full judgment will be published next month.

The ruling means that Birmingham will have to review the setting of its adult social care budget and make a fresh decision. “It is open to the council now to retake its decision and continue providing services for those with ‘critical’ and ‘substantial’ needs in the meantime,” Irwin Mitchell said. “The council will need to find the funds within the budget already set to continue to fund for the ‘substantial’ care needs of disabled and older people.”

Polly Sweeney, a solicitor at the firm who advised Ms A, a 65 year old lady with severe learning disabilities, said the case had national significance. “Proposals to cut mandatory duties and tighten eligibility for social care are the major issues in the social care sector,” she said. “This is about saving front line services for vulnerable and disabled people. It is a very significant outcome and with Birmingham City Council being the UK’s largest local authority; it’s very likely that the result will set a precedent for other cases. Other councils up and down the country seeking to target vulnerable groups through cost-cutting drives may be legally challenged.”

Irwin Mitchell claimed that Birmingham’s plans would have affected up to 5,000 disabled people.

A spokesman for the council told the BBC that the authority would be looking at the judgement in detail before deciding whether to appeal. He said: "The generality of the budget is not affected, this is a decision about the eligibility criteria for adult social care. Like all councils, Birmingham faces a huge financial challenge, with adults and communities having to make a share of the savings like all other directorates, and we need to assess the impact of this decision.

"It is also important to point out that this judgement is about the process we went through with regard to the Disability Discrimination Act, not the actual decision about where savings should be made."

This is the second case in a matter of weeks where a High Court judge has ruled that Birmingham breached equalities duties.

Mr Justice Blake recently ruled that the authority had failed to have due regard to its public sector equalities duties when it decided to cut funding for a number of legal advice services.

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13.Apr.2011

The Upper Tribunal recently made a landmark decision by ordering that the First-tier Tribunal hold a public hearing of a patient’s application for discharge from hospital. Rob Tobin examines the case.

In the case of AH v West London Mental Health Trust [2011], the applicant, AH, has been continuously detained under the Mental Health Act 1983 for over 20 years, residing at Broadmoor Hospital since January 2008. In September 2008 the classification of his mental disorder was changed from having a mental illness and psychopathic disorder to having a psychopathic disorder only. He is judged to have mental capacity to make his own decisions.

AH applied to the First-tier Tribunal for a public hearing of his discharge. The principal reasons for seeking a public hearing included frustration about the lack of progress with his mental health and the perceived failings in the system of care, including the question of his diagnosis, which he wished to have a public airing.

The First-tier Tribunal (15 October 2009)

The First-tier Tribunal held that the hearing should be in private - the “general principle” of open justice was not justified in the interests of justice. The main reasons relied upon included:

• The patient’s primary intention was to air his subjective grievances about the system
• His evidence would not be “objectively sensible”
• He would be more difficult to control and the public would be unlikely to be accurately informed
• The cost and management problems of a public hearing were disproportionate to any benefit to the patient, public or administration of justice
• The patient’s health, behaviour and progress were likely to be adversely affected by a public hearing (and by adverse or no publicity afterwards).

AH appealed.

Appeal

On 29 July 2010, the Upper Tribunal accepted that the underlying assumption is that the interests of justice will normally require a hearing in private in mental health cases. However, the Tribunal emphasised that the principal consideration remains the protection of the interests of the patient. It held that the fundamental principle to open justice is a right under common law and specifically, under Article 6 of the European Convention on Human Rights (the Convention). It is the exceptions which need to be justified, as opposed to the right per se. Senior President of Tribunals, Lord Justice Carnwath, said: “The European Convention on Human Rights requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person.”

Specifically, the threshold test which the Upper Tribunal held as requiring consideration in an application for an open hearing is:

• Is it consistent with the subjective and informed wishes of the (competent) applicant?
• Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him?
• Are there any other special factors for or against a public hearing?
• Can practical arrangements be made for an open hearing without disproportionate burden on the authority?

With regard to the issue of “special factors”, the Tribunal recognised the need for a careful balance between speculation and clinical judgment. Nevertheless, the views of the patient himself were highlighted as carrying considerable weight (in the absence of other countervailing factors).

The Upper Tribunal set aside the decision of the First-tier Tribunal and directed a further hearing on 31 January 2011 to consider the practicalities and potential costs of providing a public hearing. The Tribunal concluded that how the right to a public hearing can practically and proportionately be achieved will depend on the individual case and will include the facilities available. In this case, arrangements were recommended for relaying the on-site hearing to a public arena, with use of video facilities. With regard to cost, the Tribunal held that “considerations of cost must reach a high threshold before they can be regarded as sufficiently disproportionate to permit a restriction of a public hearing.”

Comment

As accepted by the Upper Tribunal, this case was “out of the ordinary”. Indeed, the Tribunal heard evidence that over the last seven years, there had been 10 applications for tribunal hearings in public out of approximately 100,000 hearings. Of those, only one application was granted (which was subsequently withdrawn).

Private hearings are generally favoured by all interested parties. Patients tend to prefer them as they provide protection against details of their personal health being publicised. A patient’s mental state will be closely scrutinised at a tribunal hearing, where the main consideration will be their mental health and whether or not they ought to remain detained under the Mental Health Act. This supports the general principle that such hearings will be held in private, to protect such vulnerable individuals, unless an application is made to the contrary.

It is, therefore, not surprising that a tiny proportion of applications for public hearings have been made.

As a result of this case, though, there may be a slightly faster flow of applications for public hearings and trusts and managers of other secure facilities should be prepared to consider the feasibility of organising one, should it be ordered.

It is likely that, when an application is made, the detaining organisations will be asked the following:

• Does the patient have the required mental capacity to apply for a public hearing?
• Will a public hearing have an advsere effect on the patient’s mental health in the short or long term? (A statement from the responsible clinician should be provided).
• What are the patient’s reasons for wanting a public hearing and how do those weigh against the opposing factors?
• What facilities are available to hold a hearing in public and what practical hurdles, if any, will need to be surmounted? Cost and technological matters to facilitate the hearing should be considered.

Whether the decision will open the doors to the previously private setting of first-tier mental health tribunals remains to be seen. However, the significant implications for the way mental health tribunals function are apparent.

Rob Tobin is a partner at Kennedys (www.kennedys-law.com). He can be contacted on 020 7667 9305 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

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06.Apr.2011

Whistleblowing organisation Public Concern at Work has called on local authorities, regulators and care providers to address “systemic deficiencies” that prevent care workers from speaking up effectively to protect vulnerable adults.

The organisation said that more than 15% of all whistleblowing concerns it receives come from the care sector, accounting for the highest percentage of calls to its helpline.

Half of these calls relate to abuse in care. The most common concerns are: physical abuse, lack of dignity, neglect, conduct of staff, verbal abuse and medication administered incorrectly or not at all.

Public Concern at Work suggested that in 40% of cases the concerns were either ignored or denied by management.

The research found as well that in half of all cases where other staff knew about a risk “they were either too scared or felt unable to speak up”. It also revealed a low awareness of available support, with few care workers knowing of or using their whistleblowing policy.

Cathy James, Acting Director of Public Concern at Work, said “Our research demonstrates there are systemic deficiencies that prevent care workers from speaking up effectively to protect vulnerable adults. This must be addressed. We have to ensure that every worker who is in a position to speak up is encouraged and supported. Whistleblowers should not be lone voices in the workplace. This is all the more important when safeguarding those who cannot speak up for themselves.

“We are calling for the proactive promotion of good whistleblowing arrangements and the support available for whistleblowers.”

Public Concern at Work called on local authorities, regulators and care providers to:

• Increase awareness among all workers of the signs of all variations of abuse
• Proactively promote best practice whistleblowing arrangements that encourage open workplaces, help staff know when to raise a concern, how, with whom and give access to independent advice
• Provide training and guidance for managers on how to handle and elicit concerns, with particular attention on how to handle confidentiality
• Take demonstrable action in responding to a concern, provide feedback to the whistleblower and ensure a zero tolerance attitude if a whistleblower is victimized for raising a concern
• Provide clear, accessible pathways as to how and when to approach the local authority or the Care Quality Commission, particularly in relation to a concern about administering medication.

Philip Hoult

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05.Apr.2011

Directors of social services have "strongly urged" the government to give the proposed health and well-being boards statutory powers to sign off local commissioning plans and to hold commissioners to account.

In a joint response to the government’s Public Health White Paper, the Association of Directors of Adult Social Services (ADASS) and the Association of Directors of Children’s Services (ADCS) said they welcomed an enhanced role for councils in public health.

But they called on ministers to clarify how this proposed greater role would be funded. The two organisations also expressed concern about the structures emerging from the Health and Social Care Bill, with the submission saying it was unclear what the relationship between Public Health England, the NHS Commissioning Boards, Monitor, HealthWatch, the health and wellbeing boards and GP consortia would be.

In addition to seeking statutory powers for health and well-being boards, the submission seeks reassurance that a “potential dilution” of the priority given to vulnerable children, families and adults, and of “further fragmentation” in health services for children and families do not take place.

It said: “We are particularly concerned that there appears to be potentially inadequate representation of the needs of children and young people in the planning and commissioning arrangements in the proposed system.” The response cites the limited reference to the critical role of schools in the public health agenda as a particular concern.

ADASS’ National Lead on Public Health, Sandie Keene, said: “The decision by central government to return public health to local government in which it can be appropriately connected to a wide range of other issues and services is profound, and right. ADASS welcomes this move despite continuing concerns about the structural shape the NHS and local government will take in future. And, of course, important matters concerning the accountability and funding of this important service.”

Ann Baxter, chair of the ADCS Health, Care and Additional Needs Policy Committee, said: “There is a massive potential for local authorities and health partners to have an impact on some of the more intractable public health challenges within these new arrangements, particularly in providing a renewed focus on the health needs of children.

“Local authorities will want to make the most of the new health and wellbeing boards, and we believe that in order to do so, the boards must retain oversight of the commissioning of all health services to ensure coherence and consistency in services for children and young people and their families.”

The joint response can be viewed here.

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05.Apr.2011

A local authority has been fined £50,000 and ordered to pay costs of £27,670 following a council-organised trip where a man with learning difficulties drank dishwasher fluid that was mistakenly thought to be orange juice.

Colin Woods, who was 60 and had Down’s Syndrome, died 17 months after sustaining his injuries on the trip to sporting facilities at Plumpton Agricultural College in 2004.

Five other individuals from St Nicholas Centre in Lewes also suffered agonising injuries as a result of the mix-up, with most having to undergo repeated surgery and three unable ever to swallow normally again.

The drink had been prepared at the day centre and taken with the group. The container for the dishwater fluid was marked as corrosive as it contained sodium hydroxide, but it had a similar appearance to that for orange squash.

An investigation by the Health and Safety Executive, which brought the prosecution against East Sussex County Council, found that the authority had failed to ensure the dishwater fluid was safely locked away.

The council admitted to leaving the liquid in the unlocked kitchen of the day centre. It pleaded guilty to breaching section 3(1) of the Health and Safety at Work etc Act 1974.

HSE inspector, Andrew Cousins, said: "This is one of the worst incidents I have investigated in all my time as a health and safety inspector – it is impossible to adequately imagine the suffering and terror that the victims must have felt as this tragedy unfolded.

"The terrible thing is that this incident and its horrific consequences could so easily have been prevented by simply locking away the container of sodium hydroxide.

"Instead, Mr Woods died a slow, painful and unnecessary death and others have suffered terrible, preventable injuries - some painful and permanent - because the council failed in its responsibility to take proper care of them. It is imperative that authorities properly protect vulnerable people in their care."

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04.Apr.2011

An elderly woman is taking her fight with a local authority over its decision to withdraw funding for a night-time carer to the Supreme Court this week.

Elaine McDonald, a former principal ballerina with Scottish Ballet, has a condition that requires her to use a toilet up to three or more times a night.

In November 2008, the Royal Borough of Kensington & Chelsea decided to reduce funding for her weekly care, from an amount that had paid for a night-time carer to an amount which paid for the provision of incontinence pads at night.

Ms McDonald challenged the decision by way of judicial review. However, Frances Patterson QC refused to grant permission to bring judicial review proceedings.

The Court of Appeal also refused the application for judicial review, in a ruling that suggested it was primarily for local authorities to decide on what levels of care they should provide to their residents.

Lawyers for Ms McDonald, whose case is being backed by the Equality and Human Rights Commission (EHRC), said they would use community care, human rights and disability discrimination law to argue that her assessed need should be met.

This will include submitting in the two-day hearing that Article 8 of the European Convention on Human Rights – the right to respect for private and family life – requires her to be provided with a community care service in accordance with her dignity and that the decision to withdraw her night-time care service was a disproportionate interference with her Article 8 rights.

John Wadham, Group Director (Legal) at the ECHR, said: “This case will set an important precedent. With an ageing population and budget pressures, care for older people is an issue that is escalating in scale.

“Older people deserve to be treated with dignity and respect. Providing them with the care they need should be a basic right; local authorities should not be able to override that fundamental human right.”

Ms McDonald said she felt like the council was penalizing her because she wanted to remain independent and did not want to become incontinent.

“On the nights when I don’t have a carer I may have to lie in my own urine and faeces for 12 hours at a time, until my carer arrives the following morning,” she said. “I do not even think that prisoners have to suffer such indignities.”

Philip Hoult