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12.Jan.2011

The number of people being detained in hospital under the Mental Health Act increased by almost 20% in 2009/10, it has been revealed.

According to the NHS Information Centre, 42,479 people were detained during the period compared to 32,649 in 2008/09 – a rise of almost a third.

Part of this rise was explained by improved data submission by NHS trusts – nevertheless, the number of detentions rose by 17.5% on a like-for-like basis.

The rise in MHA detentions was the main reason why the number of people spending time in NHS mental health hospitals increased for the first time in five years.

The percentage of patients compulsorily detained in NHS mental health hospitals also rose 7.6 percentage points to 39.4% in 2009/10.

“As the number of those detained in hospital via the criminal justice system also continued to rise, the figures suggest NHS mental health hospitals are increasingly being used to care for patients who are a risk to themselves or others,” the NHS Information Centre reported.

Its Mental Health Bulletin 2009/10 also showed:

• More than 1.25m people were recorded as using NHS specialist mental health services in the year – the highest number since the data collection began in 2003/04 and a 4% increase from 2008/09. Of these people 8.5% spent time in hospital.
• The number of people who were admitted to hospital for care rose by 5.1% – the first increase since 2004/05.
• The average number of days spent in hospital during the year per patient was 68 days for women and 78 days for men
• The number of women detained under the MHA who came into hospital via prison or the courts was 830, an estimated rise of more than 85%. The number of men in this category rose by 48% from 1,982 to 2,935.

NHS Information Centre chief executive Tim Straughan said: “This report is accompanied by the largest release of information ever about NHS mental health services and will be a source of huge interest to those developing services on the ground.

“It shows more people are being treated by NHS specialist mental health services and that more than 90% of these patients receive care outside of hospital. Interestingly, the number of patients being admitted has risen for the first time in five years and the figures show the composition of patients receiving care in hospital is shifting, with a small but growing proportion coming from a prison or court setting.”

Alex Ruck Keene, a barrister at 39 Essex Street, said: "The figures only show how important it is that appropriate funding is retained for legal representation for those detained, and to ensure that Tribunals can be convened to allow the state to comply with its obligations under Article 5(4) ECHR to those detained under the MHA 1983."

The full bulletin can be downloaded at www.ic.nhs.uk/pubs/mhbmhmds0910.

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10.Jan.2011

The government should impose a statutory duty on all local authority and partner organisations to integrate and pool community budgets, barristers working in the public sector have said.

In response to the Cabinet Office and Treasury’s call for evidence on public service reform, the Bar Association for Local Government and Public Service (BALGPS) said: “One of the greatest hurdles currently facing community budgets is the inability or unwillingness of various public sector organisations – including some local authorities – to work collaboratively together and to pool community budgets.”

A statutory duty to integrate and to pool community budgets would help “obtain the best value for money for the public good as a whole and…. encourage innovation and creativity of all public services delivery, not just service delivery by individual public bodies”, it added.

The BALGPS response, submitted by its chairman Mirza Ahmad, said the association was supportive of the government’s actions to reform public service provision.

In addition to calling for a statutory duty to integrate, the association said:

• There is a need to avoid “old compulsory competitive tendering” prescriptive rules and regulations. “This is essential so as to avoid local authorities using the legislation to avoid tendering of their in-house services,” BALGPS said. “It must also be recognised that local authorities are voluntarily doing many of the things necessary for the transformation of public services – because of the tight financial/budgetary constraints facing the nation – and, as such, it is difficult to see how a Government imposed proportion (whether that be in relation to indicating “at least x%” or “no more than y%” of in-house services being retained in-house), will actually make a difference.”
• A prescriptive framework will not deliver the government’s objective of promoting independent provision in public services. “The key for government must be to ensure and encourage open market forces and to allow local authorities and other public bodies to determine the most relevant services for transformation/external service provision.”
• Public employees should be incentivised to take advantage of the “rights to provide” services. This could be through tax incentivisation or reliefs “so as to make private (as opposed to public) employment more appealing". There should also be ring-fenced funds available to make such transition more manageable. Seed funding could be limited to three to five years so that any new organisation is “clear that such funding will come to an end and it must be driven by open market forces thereafter”.
• It is essential to leave open market forces to deal with failures in public service provision. “Imposing an artificial bottom line safety net for the emerging public sector organisations or manager/employee buy-outs could risk increasing poor services,” BALGPS said. “Accordingly, the government will need to accept a certain level of failures in accordance with open market forces.” As a result the government should consider limited and appropriate safeguards in relation to vulnerable adults and children. “These should, however, be kept to an absolute minimum as unnecessary regulation will detract from encouraging or developing an open market”
• Any remaining national regulatory bodies left after the government’s reform of quangos must continue to “add value” to front line public service delivery. “This must, however, be supported by demonstrable evidence of tangible service improvements in delivery,” BALGPS argued. “If any national regulatory body remains, it must only do so if it delivers a positive net benefit in relation to the public pounds spent on its existence.” An appropriate formula could be devised to calculate “the positive net public benefit” delivered by such organisations on an individual and annual basis, with the government able to rapidly trigger the abolition of a national regulatory body in the event of any such body falling below a predetermined threshold.
• Local authorities are best placed to govern their localities and it is not the role of central government to govern localities. “If there is a role for central government re localities, it is one of central government supporting, with appropriate finances, local authorities efforts relating to their localities,” the association said. “The government should not, therefore, seek to build new (or replace old) controls over local authorities, as such controls will, undoubtedly, increase central government bureaucracy and costs. Which would, of course, run counter to the government’s stated aims of reducing the role of the State.”

BALGPS has 110 members. Its chairman, Mirza Ahmad, is Corporate Director of Governance at Birmingham City Council.

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05.Jan.2011

The Local Government Ombudsman has criticised Poole Borough Council for conducting flawed risk assessments for a walking group organised by the local authority’s community outreach and support team.

The Ombudsman, Jane Martin, carried out an investigation following complaints from a family of a 43-year-old man with learning difficulties who died on one of the group’s walks in July 2008.

The family claimed that Poole had failed to properly assess the risk of the walk, and had not provided them with sufficient information about it. They felt Mr Clark (not his real name) had not been properly looked after, and that the council had been insensitive in its dealings with them.

A post mortem revealed that Mr Clark had an undiagnosed heart condition and had suffered a myocardial infarction 24 hours before the walk took place. A coroner ruled that he had died of natural causes and refused to hold an inquest.

An investigation conducted by the council recommended a number of improvements and called for an apology to be given to the family.

In her report Martin said: “In light of the coroner’s conclusions there can be no suggestion that any fault identified in this report caused [the client]’s death… However, I consider the council’s maladministration caused the family’s distress to be greater than it would have been.”

The LGO added that Poole had “failed to identify at all some obvious risks which were included on the council's own list of factors to be considered”. She also described the council’s communications with the client’s mother as “poor”.

Martin concluded that there had been maladministration in Poole’s risk assessments and supervision arrangements, and expressed concern about the appropriateness of the walk.

She praised Poole’s response to her recommended remedy. It will pay the family £1,500 for their additional distress and £500 for their time and trouble in bringing the complaint.

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17.Dec.2010

The Legal Services Commission breached the Public Contract Regulations 2006 during its tenders for public law and high security mental health hospitals work but will not have to re-run the exercise, a High Court judge has ruled.

Two law firms, Public Interest Lawyers and RMNJ, had brought the challenge, backed by ten other practices.

Mr Justice Cranston ruled that:

• The verification carried out by the LSC to check the quality standards of those firms awarded contracts was flawed. “In particular the process has not allowed the Legal Services Commission to verify that firms meet these criteria in relation to the employment of appropriate supervisors set out in the 2010 Standard Civil contract,” which offends against the principle of equal treatment under the 2006 Regulations
• It was appropriate – to ensure that unfairness caused to successful tenderers who do meet the relevant criteria is remedied – for the LSC to ensure that, within a limited period, all firms holding contracts in public law and mental health comply with the supervisions standards. “Those that found not to comply must have their contract removed. Any new matters starts need to be redistributed pro rata to those firms who do meet the verification requirements”
• 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”. Under s. 49A of the Disability Discrimination Act 1995, the LSC must have due regard to whether they need to take steps to ameliorate that result of the contracting exercise
• There was no legal flaw in the way the LSC conducted the tender for the award of public law contracts – there was no breach of its duty under section 4 of the Access to Justice Act 1999. Those specialist public law firms that are no longer able to open the advice cases they did under the 2007 Standard Civil contract, are not precluded from undertaking under certificate publicly funded litigation “which they have done in the past, and which has been such a notable feature of the work of this court”.

A Legal Services Commission spokesman highlighted the fact that the challenges had failed to overturn any of the LSC’s tender decisions.  

He added: “The judge found that the LSC’s tender process did not breach the Disability Discrimination Act, and his judgment confirms that we met our legal obligations under the Access to Justice Act.  We are pleased that the uncertainty caused by this litigation has ended.   

“However, we accept the court’s criticism of the verification process for our supervisor standards in public law and mental health.  We are currently reviewing what additional verification needs to be undertaken as a result and will publish details on our website in due course.”

Saimo Chahal, partner at Bindmans, claimed the judicial reviews had highlighted “once again” the shortcomings in the LSC’s tender processes.

She said: “These two firms with 10 firms standing behind them had always made clear that they were concerned with the impact of the tendering processes on their vulnerable clients and that they were litigating in the public interest. This was accepted by the Court when it granted a protective costs order to the claimants – the first PCO involving law firms in this type of situation. The court observed that these firms were not motivated by commercial interests but were litigating on issues of significant public interest.

“I hope that the LSC will now see sense and agree the steps which have to be taken in order to rectify the flaws highlighted in the tendering processes. If the LSC does not agree to rectify the flaws, then we will be seeking appropriate orders on 21 December."

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15.Dec.2010

The Social Work Reform Board (SWRB) has published the first single, national set of professional standards for social workers, outlining what level of service the public can expect from them, and recommended an overhaul of social worker education and training.

The board, which was set up a year ago to advise the government on reforming the social work system, said that the proposals would bring the social work profession in line with other public sector professionals like doctors, nurses and teachers.

It said that the core themes of the overarching professional standards framework should be:

• Professionalism: identify and behave as a professional social worker, committed to professional development.
• Values and ethics: apply social work ethical principles and values to guide professional practice.
• Diversity: recognise diversity and apply anti-discriminatory and anti-oppressive principles in practice.
• Rights, justice and economic wellbeing: advance human rights, and promote social justice and economic well-being.
• Knowledge: apply knowledge of social sciences, law and social work practice theory.
• Critical reflection and analysis: apply critical reflection and analysis to inform and provide a rationale for professional decision-making.
• Intervention and skills: use judgement and authority to intervene with individuals, families and communities to promote independence, provide support and prevent harm, neglect and abuse.
• Contexts and organisations: engage with, inform, and adapt to changing contexts that shape practice. operate effectively within own organisational frameworks and contribute to the development of services and organisations. operate effectively within multi-agency and inter-professional settings.
• Professional leadership: take responsibility for the professional learning and development of others through supervision, mentoring, assessing, research, teaching, leadership and management.

The SWRB also recommended that social work education should also be reformed to improve the quality of social work degrees, with more rigorous selection criteria. It added that the design of social work courses should involve people who have experienced social services, so that the training properly reflects the real-life reality of the job.

The SWRB's report Building a Safe and Confident Future – One year On said that employers should be expected to set out standards of supervision and support for social workers, to include:

• making sure the right number of social workers with the right level of skills and experience are available to meet the level of demand
• managing workloads and caseloads so that social workers are not overworked
• giving social workers the practical resources they need to do their jobs
• creating development opportunities for social workers to give them greater experience and skills.

Moira Gibb, CBE, Chair of the Reform Board and Chief Executive of the London Borough of Camden, said:

“A year ago the Social Work Task Force recommended comprehensive reform of the social work system so that in the future, social workers are more consistently able to practise confidently and safely. Since then, the Social Work Reform Board has been working to make the task force's recommendations a reality.

“This report, the first from the Social Work Reform Board, marks a staging post in the journey of social work reform and a foundation for helping us, together, to deliver a better future for social work. The proposals published today should help every individual social worker, every employer of social workers and everyone who educates or trains social workers to do their work better in the interests of those who need and use social work.

“The government supports the work of the Social Work Reform Board and is urging the sector to get involved in the next steps towards implementing these important and necessary changes.”

Tim Loughton, Children’s Minister, said: “I welcome the Social Work Reform Board’s proposals, which are an important step for social workers to gain the status and respect they so rightly deserve. We are committed to making a real difference to frontline social work and to implementing the Social Work Reform Board’s recommendations. That is why in the new year we will be announcing significant funding to implement the reforms and Professor Munro’s recommendations to improve child protection.”

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01.Dec.2010

Victoria Butler-Cole and Alex Ruck Keene provide guidance on how local authorities and other statutory bodies should approach the preparation of care plans, transition plans and best interests assessments for Court of Protection proceedings.

This short paper is designed to assist local authorities and other statutory bodies applying to the Court of Protection with preparing evidence to support applications relating to health and welfare.

A common complaint from the Court, other parties or the Official Solicitor is that there is insufficient written information about what is proposed for P, why the proposed option is considered to be in P’s best interests, and the details of the care plan and transitional arrangements. Often, the relevant issues have in fact been considered by professionals working with P, but the written documentation such as care plans and witness statements does not reflect this adequately.

The checklists below list the sort of information and detail that is likely to be required to support an application to the Court and within proceedings. We hope they will serve as a useful guide to non-lawyers preparing evidence and documentation in best interests cases (whether or not there are court proceedings contemplated). They should not, however, simply be applied to every case since not every element will necessarily be relevant. Furthermore, because the checklists are the product of the experience of the 39 Essex St Court of Protection team we do not claim that they are exhaustive (and certainly do not serve as a substitute for following the reams of guidance issued by the government).

Checklist for Best Interests evidence

1. Clinical and social work information about P including diagnosis, prognosis, presentation, history. Although this information will be contained in the various records, it is helpful to have a summary of relevant details so that anyone unfamiliar with the case can have a picture painted of P and P’s care needs.
2. P’s wishes (including IMCA reports if available). P’s wishes must be taken into account in making a best interests decision and it is therefore important to make sure that a clear record of P’s wishes is kept, whether obtained directly from P, or through reports from third parties such as family members, paid carers, or advocates. This applies whether P expresses consistent or inconsistent wishes – in either case, the information about what P has said will need to be considered, although clearly in the former case it will likely be accorded more weight. Information should also be included about steps that have been taken to improve P’s understanding of the issues in dispute, and to assist P in expressing his or her wishes.
3. Views of family members. Careful recording of the views of family members is helpful, including family members who are not parties to proceedings. A record should also be kept of decisions taken as to why particular family members have not been consulted (if relevant).
4. Details of every option considered for P. It is critical to ‘show your working’. If the team working with P have decided that a particular option is in P’s best interests, it can be tempting only to explain in detail that preferred option. The other parties and the court need to know what all the possible options are, even if they include options that can immediately be discounted (for example, the option of doing nothing where P faces a serious risk to his or her wellbeing). Make sure that options proposed by family members are included in the list of possibilities, even though they may not be recommended by the professionals working with P.
5. Factors for and against each of the options under consideration. For every option, details of the benefits and risks or disadvantages to P must be set out (See footnote). It is often easiest to do this in table form, or using bullet points, so that the reader can easily see the issues and can compare the various options under consideration. Don’t forget to include practical implications for P as well as less tangible factors such as relationships with family members and care home staff.
6. The likelihood of the pros and cons of each option eventuating. Give some indication of whether the risks and benefits you have identified are likely to occur or not, and why you take this view.
7. The relative seriousness and/or importance of the pros and cons of each option. It may not always be obvious which benefits and disadvantages you place particular importance on and why. A common tension is between avoiding risk and promoting independence: explain why you have given more weight to one approach in the particular case.
8. Reasons for identifying a particular option as being in P’s best interests and for rejecting the other options. Although it may seem clear in light of the analysis of benefits and disadvantages, it is helpful to set out separately a conclusion about which option you consider to be in P’s best interests and why. This is particularly important where there is a dispute and where the option you prefer does entail significant disadvantages to P, such as a loss of independence, intrusion into a longstanding relationship, or inevitable distress caused by a change of environment.
9. If proposed option entails risks or disadvantages to P, reasons why these are thought to be outweighed and steps to be taken to minimise them. Having decided that certain risks are worth taking in P’s best interests, or that certain disadvantages are outweighed by benefits, it is important to show that you have considered what could be done to reduce these risks or disadvantages and set out detailed plans for dealing with them. This might include additional care or staff support for particular periods of time, or the provision of financial assistance to ensure that relationships can continue.
10. Detailed contingency plans if the proposed option is implemented. Where there is the prospect that a proposed option may fail in the short or medium term, there must be thought given to what will happen in those circumstances, to reassure the other parties and the court that hasty and off-the-cuff decisions will not suddenly be required, to the possible detriment of P.

Checklist for Care Plans

1. Take into account the guidance given by Munby J (as then was) in R(J) v Caerphilly County Borough Council [2005] 2 FLR 860: “46… A care plan is more than a statement of strategic objectives – though all too often even these are expressed in the most vacuous terms. A care plan is – or ought to be – a detailed operational plan. Just how detailed will depend upon the circumstances of the particular case. Sometimes a very high level of detail will be essential. But whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the 'how, who, what and when' – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met.”
2. The assignation of specific responsibilities to individuals is particularly important in the CoP context.
3. Take into account the factors set out in checklist A above wherever the care plan involves the making of decisions for or on behalf of P.
4. Ensure, where appropriate, that consideration is given to the person-centred planning approach in the previous government’s Valuing People guidance.
5. Where the care plan involves any degree of restraint, identify the precise nature of the restraint, the rationale for it, plans to minimise the need for restraint (and contingency plans in case the need for restraint is escalated). If, in the consideration of the need for restraint, it emerges that the requirement goes beyond restraint into a deprivation of the person’s liberty then authorisation will be required for that deprivation (how this will be achieved will depend on the setting, and whether the DOLS procedures apply).
6. Be realistic. There is nothing that the OS/Court of Protection likes less than to see a care plan founded upon optimism alone: if this means that it is necessary to set a series of apparently limited objectives on the way to a more distant goal, then so be it.

Checklist for Transition Plans

1. Details of P’s current and proposed care, including full care plans for each setting.
2. Step-by-step account of how P will be moved from A to B including: Timing; Personnel involved; Who will take responsibility for the transition on the day and subsequently; What will happen from P’s perspective (eg. moving possessions, arrangements for meals on the day etc); Whether police will be present and if so, details of their involvement (note that unless physical force and/or restraint and/or sedation are essential, it is best to plan on the basis that they will not need to be authorised by the court, and then to return to court in the event the transition does not work and further steps are required); and Monitoring in days/weeks immediately following move.
3. Where police will be involved in the removal, ensure that the transition plan includes information sufficient to satisfy the guidance given by Coleridge J in Re MP; LBH v GP [2009] FD08P01058:

“In the event that it is expected that the assistance of the Police may be required to effect or assist with the removal of a vulnerable/ incapacitated adult (“P”) which the Court is being asked to authorise, the following steps should generally be taken:

(1) the Local Authority/NHS body/other organisation/person (the Applicant) applying to  the Court for an authorisation to remove P should, in advance of the hearing of the Application, discuss and, where possible, agree with the Police the way in which it is intended that the removal will be effected, to include, where applicable, the extent to which it is expected that restraint and/or force may be used and the nature of any restraint (for example, handcuffs) that may be used;

(2) the Applicant should ensure that information about the way in which it is intended that removal will be effected is provided to the Court and to the litigation friend (in cases where a person has been invited and/or appointed to act as P’s litigation friend) before the Court authorises removal. In particular, the Court and the litigation friend should be informed whether there is agreement between the Applicant and the Police and, if there is not, about the nature and extent of any disagreement;

(3) where the Applicant and the Police do not agree about how removal should be effected, the Court should give consideration to inviting/directing the Police to attend the hearing of the Application so that the Court can, where appropriate, determine how it considers removal should be effected and/or ensure that any authorisation for removal is given on a fully informed basis.”

Victoria Butler-Cole and Alex Ruck Keene are barristers at 39 Essex Street. They can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it. respectively.

The article was the subject of very helpful comments from Beverley Taylor at the Official Solicitor’s office, although it should not be read as a document with the official imprimatur of that Office.

Footnote

1.                  Following the well-established ‘balance sheet’ approach identified by Thorpe LJ in Re A [2000] 1 FLR 549 at 560: “There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal. … Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.” Whilst this pre-dates the coming into force of the Mental Capacity Act, the Courts have continued to adopt the approach.