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31.Mar.2011

The Law Commission’s consultation on reforming adult social care law found “overwhelming support” for the retention of key legal rights, the law advisory body has said.

Publishing a summary of the responses today, the Law Commission said there was also strong backing for maintaining duties to co-operate between social services and other agencies and for the proposal to introduce a duty to investigate in adult protection cases.

Frances Patterson QC, the Public Law Commissioner in charge of the review, said there was strong agreement that adult social care law should be reformed as a matter of priority.

“Many people have been keen to tell us about the difficulties they are experiencing as a result of the complexities of the law, and how they have been confused by, or even completely unaware of, their basic legal entitlements,” she said.

Patterson added that the Law Commission would review its scheme as a whole to make sure it could “accommodate policies such as personalisation, self-directed support, prevention and the universal services, while also maintaining the strong legal rights that were overwhelmingly supported by consultees.”

The Law Commission is set to publish its final report in May 2011. The government will then review its recommendations with a view to introducing new legislation in 2012.

Overall the Commission received 231 formal responses, including submissions from 26 local authorities, the Local Government Association, the Law Society, and the Association of Directors of Adult Social Services. It also held 72 events across England and Wales.

The consultation paper and analysis of responses can be read here.

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30.Mar.2011

A recent Court of Protection case has provided some clarity on what happens when a local authority declines to put an option before the judge for consideration. Alex Ruck Keene and Victoria Butler-Cole report.

The decision in A Local Authority v PB and P [2011] EWHC 502 (COP) relates to a relatively ‘standard’ best interests case concerning the residence and care arrangements for P, a man suffering life-long learning disability who had been cared for by his mother for the majority of his life, but had then been removed to be cared for by the local authority.

It is of wider interest because Charles J set out in it in a reportable judgment for the first time that these authors are aware of his views as to the interaction between the Mental Capacity Act 2005 and judicial review proceedings.

His comments, although expressed in provisional form, are of some considerable utility in clarifying the issues in a debate which has become increasingly vigorous: namely, what is the Court of Protection to do where a local authority declines to put an option before it for consideration?

Charles J repeated views expressed (in relation to the inherent jurisdiction) by him in Re S (Vulnerable Adult) [2007] FLR 1095 and Munby J (as he then was) in A v A Health Authority [2002] Fam 13, and by the House of Lords (in relation to the Children Act 1989) in Holmes-Moorhouse v Richmond-upon-Thames Borough Council [2009] 1 WLR 413, to the effect, in essence, that the Court in exercising its best interests jurisdiction is “choosing between available options” (paragraph 22).

He noted that jurisdictional questions then arose as to the approach that was to be taken if someone wished to challenge the refusal of the local authority to place a particular option on the table by way of judicial review, not least as to the approach to be taken to findings of fact. At the time of writing, it would appear that the hearing listed specifically to consider those jurisdictional questions may not be effective, but we will cover the outcome of any such hearing later.

Charles J also took the opportunity in this judgment to set out his views as to the cardinal importance of identifying the point in best interests proceedings at which it is no longer possible to proceed down the consensual route (which militates against the seeking of findings of fact adverse to a family member) and it becomes instead necessary to deploy the full panoply of the Court’s forensic mechanisms.

In the instant case, and with the benefit of hindsight, it had become clear that that point had not been identified in time, such that all parties (including the Official Solicitor) had appeared before him for a final hearing in circumstances where he did not consider that the issues had been sufficiently delineated to allow that final hearing to be proceed.

To this end, and with a view to giving general guidance, he suggested (at paragraph 46) that at an appropriate stage, sufficiently prior to the final hearing, a direction should be given to the effect that each party should serve on the other a document setting out:

(1) (a) the facts that he/she/it is asking the court to find, (b) the disputed facts that he/she/it asserts the Court need not determine, and (c) the findings that he/she/it invites the Court to make by reference to the facts identified in (a);

(2) With sufficient particularity the investigations he/she/it has made of the alternatives for the care of P and as a result thereof the alternatives for the care of P that he/she/it asserts should be considered by the Court and in respect of each of them how and by whom the relevant support and services are to be provided;

(3) By reference to (1) and (2) the factors that he/she/it asserts the Court should take into account in reaching its conclusions;

(4) The relief sought by that party and by reference to the relevant factors the reasons why he/she/it asserts that those factors, or the balance between them, support the granting of that relief; and

(5) The relevant issues of law.

Comment

Even if only provisional, the comments of Charles J in relation to the CoP/judicial review divide are of importance, as it will only become a more regular feature of best interests proceedings going forward that cash-strapped local authorities will simply decline to put on the table particular options. Quite where and how such decisions are to be challenged is a matter that will no doubt be the subject of further judicial consideration but Charles J has laid his cards out clearly on the table.

The procedural comments made by Charles J are also of significance, but no little difficulty. Those who regularly appear before the Court of Protection will know both that there is not complete unanimity between the judiciary as to the merits of conducting fact-findings hearings, and also that identifying the point at which it is necessary to abandon attempts to find consensus (with all the benefits that that brings for the maintenance of a working relationship with members of the family) and instead to segue into adversarial mode is a uniquely tricky exercise. Doing so too early can be just as damaging as doing so too late.

Alex Ruck Keene and Victoria Butler-Cole are barristers at 39 Essex Street (www.39essex.co.uk).

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25.Mar.2011

The courts have clarified who is the responsible authority for providing aftercare for persons discharged after being detained under the Mental Health Act 1983. Simon Lindsay, David Owens and Hannah Taylor explain the key rulings.

On 15 February 2011, the Court of Appeal provided clarity as to who the responsible authorities are for the purpose of s.117 aftercare under the Mental Health Act 1983 in the case of R (on the application of Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM [2011] EWCA Civ 77.

S.117 aftercare services

Under the Act the responsible authorities have a joint duty to provide aftercare services to a patient who was detained under section 3 or section 37 (or is transferred under section 45A, 47 or 48) once they are discharged from hospital. This is a freestanding right to services, and not part of wider statutory duties.

Who are the responsible authorities?

Section 117 of the Act makes it clear that Parliament intended Primary Care Trusts (or Local Health Boards) to be jointly responsible with Local Social Services Authorities in providing aftercare services. In practice, this function of Primary Care Trusts is often delegated to NHS Trusts and NHS Foundation Trusts.

Which health body and local social service authority is responsible?

Section 117 of the Act states that it is the health body and local social service authority: “for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained”.
Unfortunately, this does not provide much clarity as between health bodies and local social service authorities.

R v Mental Health Review Tribunal ex. P. Hall [1999] 3 All ER 132

This case made it clear that the responsible authority is that which is responsible for the area in which the patient was resident prior to being detained, unless it is unable to be established where the patient was resident prior to detention, in which case it is the authority responsible for the area to which the patient is discharged.

However, this case did not address the common scenario for local social services authorities where persons are placed in their area under the National Assistance Act 1948 (the "NAA 1948") by another local social services authority but are deemed to be resident in the area of the placing local social services authority – the so called "deeming provisions."

R (on the application of Hertfordshire County Council) v London Borough of Hammersmith & Fulham and JM [2011] EWCA Civ 77

This case has made it clear that the "deeming provisions" are irrelevant for the purposes of identifying the responsible local social services authority for aftercare services under s.117 of the Act. In practice, this means that where a person is placed in Area B by local social services authority A under the NAA 1948 (and therefore deemed resident in Area A), is detained under the Act and discharged to Area C, the local social services authority for Area B is responsible for s.117 aftercare services, notwithstanding the fact that they person was deemed resident in Area A prior to their detention.
In addition, this case has made it clear that where the patient is resident during their detention is irrelevant for the purposes of identifying the responsible authority for s.117 aftercare services.

What does this mean for responsible authorities?

The responsible authority (both health and local social services) is that which is responsible for the area in which the patient was resident prior to detention. In determining where the patient was "resident," residence should be given its ordinary everyday meaning. This means where the patient was living.

Only if it is not possible to determine where the patient was resident prior to detention, does responsibility for aftercare services shift to the authorities responsible for the area to which the patient is discharged.

What should responsible authorities do in practice?

1. It is important that responsible authorities consider the issue of responsibility as soon as possible after the detention commences so that the responsible authorities can undertake the planning elements of s.117 aftercare duties before the patient is discharged from hospital. Things to consider include:

• Where did the patient live?
• Did they have a tenancy agreement or own a property in the area?
• Where did the patient work?

Issues which may muddy the water are:

• Temporary residency – for example, where a person is in hotel accommodation or a very short term tenancy
• Where a person maintains two places of residence
• Where a person is detained in prison or on remand – it is clear that where a person is in prison it does not mean they are resident in that area.

2. Detaining authorities should open up dialogue with potentially responsible authorities at the earliest opportunity in order that any areas of dispute can be remedied prior to the patient being discharged.

3. Only if a patient's residence prior to detention cannot be established, should responsibility fall with the authorities responsible for the area to which the patient is discharged.
S.117 of the Act does not provide for any mechanism of dispute resolution if responsible authorities cannot decide between themselves who has responsibility. This means that if absolute deadlock is reached, the only route open to the responsible authorities is to go to Court for a determination. This is an expensive and time-consuming process which should be avoided if at all possible. Authorities may wish to consider agreeing binding dispute resolution processes.

Finally, it is important that prolonged disputes as to responsibility do not delay a patient's discharge from hospital. This could result in a claim from the patient that they are being unlawfully detained and their human rights are being breached.

Simon Lindsay and David Owens are partners and Hannah Taylor is a solicitor at Bevan Brittan (www.bevanbrittan.com). Simon can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. while David can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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24.Mar.2011

A High Court judge has refused a charity permission to bring judicial review proceedings against Nottingham City Council over cuts the authority is proposing to its Supporting People budget.

The charity, Framework, said it would now seek permission for a judicial review against the Department for Communities and Local Government, which devised the formula for the cuts.

At the High Court Framework said it wanted to challenge Nottingham’s decision to use £12.4m as the starting point for its Supporting People budget in 2011/12. The charity cited correspondence from DCLG that indicated that the city’s formula grant allocation for the coming year included at least £19.8m in respect of Supporting People.

However, the judge decided that in conditions that differ from those in previous years, it was not unreasonable for the city council to start from a figure of £12.4m when setting its own budget for housing-related support.

Andrew Redfern, Framework’s chief executive, said: “We embarked on this process because we couldn’t stand by and watch while thousands of people lose the support they desperately need. We are disappointed, on their behalf, that permission for a legal challenge has been refused. However it is better to hit the brick wall at this point than take the case to court only to discover that it makes no difference to the reality on the ground.”

Redfern said Framework would now seek other ways to try and prevent “the worst excesses of the cuts”.

He added: “The judge accepted the argument that the baseline distribution of the Supporting People budget is a reasonable starting point for local budget setting. In view of this we will now seek permission for a legal challenge to central government’s handling of SP, in particular the re-distribution that has meant a massive reduction in the underlying allocation to Nottingham city. The figure of £12.4m for 2011/12 is 45% less than the £22.3m that Nottingham received for the same purpose in the current year.

“In the meantime we will continue to highlight the impact of withdrawing support from thousands of vulnerable people whose needs have not disappeared regardless of the disputes between central and local government. It will not be possible to prevent the harm to individuals and communities, but we may be able to mitigate it.”

News of the High Court ruling comes just days after Broxtowe Borough Council fired a warning shot at Nottinghamshire County Council over its proposals to cut its Supporting People, promising legal action if the plans are not changed.

Broxtowe’s Cabinet approved a letter to the county arguing that the cuts would have a major impact on its vulnerable tenants and put an increasing burden on the borough council.

Philip Hoult

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24.Mar.2011

The Law Society has hit out at the Legal Services Commission over its proposed timetable for a consultation and impact assessment on legal aid contract changes affecting the representation of mental health patients in high security hospitals.

Chancery Lane described the proposed timetable as “unacceptable”, warning that the rights of vulnerable clients could be infringed.

According to the Law Society, the LSC has set out an indicative timetable for the section 49A Disability Discrimination Act consultation as follows:

• beginning of April: the Commission will draft a disability impact assessment
• by the end of April: it will develop any policy changes
• further two months: it will carry out a formal consultation on any contract changes
• by end of June: it will implement changes.

In December 2010 Mr Justice Cranston ruled that there could be no challenge under the general disability equality duty to the process of awarding the contracts for legal advice for mental health patients in high security hospitals, but that duty was engaged because of the outcome of the process.

The fact that many patients may need to switch advisers as a result of the tender may “have an adverse impact on those already vulnerable”, the High Court judge said.

He added that under s. 49A, the LSC must have due regard to whether it needs to take steps to ameliorate that result of the contracting exercise.

Chancery Lane has now warned that “due to the consultation delays, clients will be forced into the very situation that the impact assessment is meant to be considering and potentially preventing”.

The Law Society added that the 2010 contract provided for urgent amendments where required. “If the consultation was carried out urgently, then the changes could be brought in by early April,” it suggested.

A Legal Services Commission spokesman said: "The JR judgement found that the high security hospitals tender was not unlawful, but identified that the LSC must have due regard for the tender's impact.

"We are working hard to ensure that the consultation is carried out properly, taking in the views of patients, a range of hospital staff, legal aid providers and other interested parties. We must also consider very carefully the impact of any potential changes to the contract.

"The timescales we have outlined are the earliest at which we can ensure a proper and meaningful consultation and impact assessment."

Philip Hoult

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16.Mar.2011

The High Court was recently asked whether a man with a low IQ had capacity to consent to sexual activity. Victoria Butler-Cole and Vikram Sachdeva argue that a ruling from either the Court of Appeal or the Supreme Court is needed.

In D Borough Council v AB [2011] EWHC 101 (COP) the High Court (Mostyn J) was once again asked to consider the correct test for capacity to consent to sexual relations.

The case, which received considerable publicity, concerned A, who had a moderate learning disability and had developed a homosexual relationship with a fellow service user, K. There was no evidence of an exploitative relationship, but the local authority had in addition been alerted to two incidents in which members of the public had raised concerns about A‟s behaviour in public. The local authority sought a declaration that A did not have capacity to consent to sexual relations and that he should not have sexual contact with K.

The jointly-instructed expert advised that the following factors needed to be understood for someone to have capacity to consent to sexual relations: For capacity to consent to sex to be present the following factors must be understood:

(a) the mechanics of the act

(b) that only adults over the age of 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children)

(c) that both (or all) parties to the act need to consent to it

(d) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections

(e) that sex between a man and a woman may result in the woman becoming pregnant, and

(f) that sex is part of having relationships with people and may have emotional consequences.

The judge rejected this analysis, and the local authority‟s submission that the personality and characteristics of the sexual partner were relevant factors. He adopted the approach set out by Munby J in the cases of X City Council v MB, NB and MAB [2006] EWHC 168 (Fam), [2006] 2 FLR 968 and Local Authority X v MM and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, that consent to sexual relations is act-specific, not person- or situation-specific.

Mostyn J concluded (at paragraph 42) that the only information relevant to giving consent which the person must understand and retain is (a) the mechanics of the act, (b) that there are health risks involved including STIs, and (c), for heterosexual relations only, that sex between a man and a woman may result in pregnancy.

On the facts, the judge found that A lacked capacity because he had a very limited and faulty understanding of sexually transmitted infections, believing that sex could give you spots or measles. Clearly, A understood the mechanics of the act, because he had already engaged in sexual activity.

However, the judge refused to grant a final declaration and said that the local authority must put in place educational measures to assist A to acquire capacity. This went against the recommendation of the expert, who considered that it would not be in A’s best interests to undergo such education. A might become confused and anxious and exhibit challenging behaviour which would jeopardise his placement.

Comment: Victoria Butler Cole

The law on capacity to consent to sexual relations is in disarray. This decision conflicts with the recent decision of Wood J in D County Council v LS [2010] EWHC 1544 and it is difficult to see how the two judgments can be reconciled (or how this judgment can be reconciled with that of the House of Lords in R v Cooper [2009] 1 WLR 1786).

Permission to appeal was granted to the local authority but it is unlikely that an appeal will be pursued given the current economic climate, and that the local authority agreed with the Official Solicitor that A lacked capacity to consent to sexual relations (albeit that they differed over the test that generated that conclusion).

In my view, A’s case would not be well suited to becoming a test case, since there was no concern about exploitation of A, and the reasons for proposing a person- and situation-specific test were far from clear. One of the difficulties with cases on capacity to consent to sexual relations is that the particular circumstances of the individual concern necessarily limit the scope of the court’s deliberations – decisions are made in the absence of sufficient information about the circumstances in which the test may need to be applied.

Thus, in this case, the lowest degree of knowledge possible was found to be needed to consent to sex. Had, for example, the judge been considering heterosexual relations, he may well have concluded that understanding not just the risk of becoming pregnant but that pregnancy itself may carry risks, was necessary. Had, for example, there been an exploitative relationship, the judge may have been more inclined to prefer a test that does not impose a blanket ban on sexual relations, but only within an exploitative relationship.

If this decision is correct, it is clear that the criminal test for capacity under s.30 of the Sexual Offences Act 2003 and the civil test are not the same; a point which was not acknowledged in A’s case. It may also, counter-intuitively, impose more restrictions on people with learning disabilities rather than promote their sexual freedom, since where an exploitative or abusive relationship exists, the inclination may well be to “fail” the individual on the test for capacity (as there is inevitably a degree of flexibility about how much knowledge of, for example, STIs is required). This could then result in a global declaration preventing sexual contact for the individual in other, non- exploitative contexts. Local authorities and those working in this area can only hope that the issue does receive consideration by the Court of Appeal in the near future.

Comment: Vikram Sachdeva

The correct test for capacity to consent to sexual relations is a highly controversial topic. The answer depends on an examination of the philosophical basis underlying incapacity law – specifically whether it is justified (on a utilitarian basis) to prevent significant sections of the population from indulging in sexual activity in order to prevent abuse in a small number of cases, or whether fewer should be barred from sexual activity, but with a risk of abuse in a small number of cases which would have otherwise been avoided.

This issue underlies another conceptual question: whether capacity to consent to sexual relations should be situation- (and therefore person-) specific, within Re MB [1997] 2 FLR 426, or whether it is not (as with marriage: see Sheffield County Council v E [2005] Fam 326). Or is the capacity to consent to marriage also situation-specific?

Further, is it essential (rather than merely desirable) for the test for capacity to consent to be identical in the criminal and the civil law? This again will depend on the purpose served by incapacity in the criminal and civil law, which may not be the same.

Although a number of first instance judges have valiantly tried to square the circle (Munby J (as he then was) in X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) and in Local Authority X v MM and KM [2007] EWHC 2003 (Fam); Roderic Wood J in D County Council v LS [2010] EWHC 1544(Fam); Mostyn J in D Borough Council v AB [2011] EWHC 101 (COP), and the House of Lords has expressed a view in passing (R v Cooper [2009] UKHL 42 [2009] 1 LR 1786), ultimately the answer is a question of policy for the Supreme Court. Its judgment will certainly make interesting reading....

Victoria Butler-Cole and Vikram Sachdeva are barristers at 39 Essex Street (www.39essex.com).