Details

07.Sep.2011

In a recent ruling allowing a newspaper to attend and report on a welfare case, the Court of Appeal insisted they had not opened the floodgates to media involvement. Alex Ruck Keene and Victoria Butler-Cole aren’t so sure.

In P v Independent Print Ltd and Ors [2011] EWCA Civ 756 the Official Solicitor appealed on behalf of P against an order made by Hedley J permitting the Independent newspaper to attend hearings in a welfare case in the Court of Protection.

The application by the Independent was sprung on the parties on the day of a directions hearing, as a result of the newspaper’s erroneous belief that simply emailing an application to Archway would result in that application being issued and copies served on all parties. The Official Solicitor and the statutory bodies responsible for P were therefore disadvantaged by not having been able to obtain evidence about the effect on P of his case being reported by the press.

By the time of the Court of Appeal hearing, an expert report had been obtained which said – materially – that P would be unlikely to recognise himself if he read the anonymised account of the hearing that had already been published by the Independent, but that the more press coverage that was given, the greater chance of P becoming aware that details of his personal life were being shared with the media, which would in turn contribute to a sense of distrust and seriously undermine his care plan and the developing of therapeutic relationships.

The Court of Appeal upheld the ex tempore judgment of Hedley J, saying that the judge had correctly applied the two stage test (whether there is good reason for the media’s application, and if so, whether the public interest in freedom of expression outweighed P’s interest in maintaining the privacy of his personal affairs) and had reached the right conclusion.

The Court of Appeal expressly declined to give any general guidance about media applications to attend and report on Court of Protection hearings, but did say that in P’s case:

• since there had been a previous anonymised judgment published, [1] there was already material in the public domain and therefore continuing public interest in the eventual outcome.
• even though the issues raised in P’s case were said not to be particularly unusual, there was no risk that the decision would lead to media access in many or all cases: each case had to be decided on its own merits.
• the judge’s decision was not caught by s.1(5) MCA 2005 because it was not a decision made on P’s behalf. P’s best interests were therefore not determinative, although of course any negative effect on P of media involvement would be relevant to the balancing process that had to be carried out.
• the judge had used his powers under Rule 91(3) to impose restrictions on the publication of any information which would identify P and had accepted that the local authority would instruct members of staff providing care for P that P must not be made aware of the fact or content of any reporting of his case. An injunction had been made against P’s mother preventing her from alerting P to the involvement of the press. There was therefore a limited risk of there being an adverse effect on P.

Comment

This decision is important because, notwithstanding the Court of Appeal’s statement that they had not opened the floodgates to media involvement in welfare cases, it is difficult to see how (given this approach) the Article 8 rights of P in any case could outweigh the Article 10 considerations provided that reporting restrictions and injunctions can be drafted which, if complied with, greatly reduce the risk of any adverse effect on P.

If it is right to allow press attendance and anonymised press coverage in a case where the expert evidence is that P’s care will be seriously undermined should he become aware of the media’s involvement, what would have to be shown to tip the balance in the other direction?

Perhaps in any case where there is a chance of media interest (for example because of the strong views of a family member, the questionable conduct of a statutory body, or the circumstances of the case itself) those concerned for P’s welfare should come to every hearing armed with expert evidence about not only the impact on P of media coverage of the case, but also the prospects of restrictive reporting requirements and injunctions being implemented and adhered to.

Certainly, it appears from this judgment that the Court of Appeal is keen to leave the decisions to the High Court judges. Acquiring expert evidence after the event, as occurred here due to the lack of advance warning of the press application, is far from ideal, and as soon as any press coverage is given, it becomes harder to argue that future hearings should be in private.

While it is obviously a good thing for perceptions of the Court of Protection as a secretive court to be addressed through increased media involvement, and while Hedley J was surely right that well-informed press reporting is better than ill-informed coverage, the authors cannot shake off a faint feeling that something may have gone wrong when the price of press involvement in this particular case is the imposition of extensive and serious measures (including an injunction against his mother) to make sure that P is kept completely in the dark.

Furthermore, the authors also note that this case is another in the line suggesting a shift in approach from those cases decided regarding media reporting prior to the enactment of the MCA, when the Courts appeared to be more concerned about P’s inherent interest (whether under Article 8 ECHR or otherwise) about securing the privacy of sensitive material regarding him (e.g. medical records).

On one view, it would appear somewhat odd that journalists would have access to (or knowledge of the contents of) these very sensitive documents simply because P is before the Court of Protection.

Put another way, in ‘conventional’ litigation, P will have a degree of choice as to whether (1) to bring or defend such litigation; and (2) whether to disclose such sensitive documents. This would inevitably then act as a further filter upon reporting of such material.

In proceedings relating to P’s best interests, P almost invariably will not have had the capacity to exercise any choice as to the bringing/defending of the litigating or the disclosure of the documents; the further filter/safeguard for P regarding reporting of sensitive material relating to him is therefore removed.

Alex Ruck Keene and Victoria Butler-Cole are barristers at 39 Essex Street.

[1]  In fact, there have been two, sub nom A Primary Care Trust v AH and P [2008] EWHC 1403 (Fam) and A Primary Care Trust v P [2009] EW Misc 10 (EWCOP) (the latter being the Bailii classification)

Details

06.Sep.2011

Lancashire County Council has successfully fought off a judicial review challenge over proposed changes to its eligibility threshold for access to social care services and to how the authority charges for this help.

In JG & Anor v Lancashire County Council [2011] EWHC 2295, the claimants were two disabled women, aged 65 and 73.

Backed by national charities SENSE and the National Autistic Society as well as by local organisation Disability Equality North West, they argued that:

• In approving its budget for 2011/12 to 2013/14 on 17 February this year, the full council had failed in its duty under s.49A of the Disability Discrimination Act 1995 to have “due regard” to the need to take steps to promote equality of opportunity for disabled people and the need to take account of disabled persons’ disabilities, even where that involved treating such persons more favourably than others
• The decision by Lancashire’s Cabinet Member for Adult and Community Services on 31 March 2011 to approve two particular policies – “service policy proposals” contained in the budget – meant that the council had again failed its “due regard” duty under s.49A.

The first policy saw Lancashire raise the eligibility threshold for adults accessing social care services under the Fair Access to Care Services (FACS) Scheme statutory guidance. This meant that going forwards services would only be provided if a person’s needs were categorised as “substantial” or “critical” under the scheme rather than “moderate”.

The second policy changed how Lancashire charged for social care services.

The decisions by the council were taken against the backdrop of having to reduce spending by 26% over the next four years. The reduction needed for 2011/12 alone was £71.6m.

In the High Court Mr Justice Kenneth Parker dismissed the claims. The judge said the real grievance of the claimants was “that, while [Lancashire] may have been conscious of its duty to have due regard to the relevant factors, it did not, at the time that the initial budget decision was taken, carry out a detailed assessment of the likely impact of the budget decision on the affected users of the relevant services.”

But he said – as the evidence showed – it was clear to those involved in approving the budget that disabled people would be adversely affected by budget reductions to adult social services. The potential impact of the policy proposals on those affected had been specifically identified for further investigation, the judge added, and as part of that investigation there had been a series of consultations.

Mr Justice Kenneth Parker also said that the approval given on 17 February did not constitute a final decision about what Lancashire’s policies would be “or even about what sum of money would, in fact, be saved under each of the service proposals”.

He went on: “On the contrary, it was obvious to the council’s members that the individual proposals, including the two policies about which the claimants complain, would be implemented only after due regard had been paid to the need to promote equality of opportunity and to take steps to take account of disabled persons’ disabilities.”

As an example, the judge pointed out that several potential options were consulted on in relation to the charging policy, after which an equalities impact assessment was conducted.

Mr Justice Kenneth Parker said: “What, in fact, has happened in this case is that the decision-maker has taken a preliminary decision in relation to its budget, fully aware that the implementation of proposed policies would be likely to have an impact on the affected users, in particular, disabled persons, but not committing itself to the implementation of specific policies within the budget framework until it had carried out a full and detailed assessment of the likely impact.”

The judge said there was nothing wrong in principle with such an approach and nothing inconsistent with the duties under the DDA. “I reject entirely, in the light of the detailed evidence relied upon by the council, the hypothesis that the procedure was a cosmetic exercise, in which the council was already committed to the implementation of specific policies at the time the budget framework was set, and was doing no more than going through the motions of setting out the consequences of a pre-determined course,” he said.

“The economic reality was that to meet imperative needs of reducing expenditure it would be extraordinarily difficult to avoid an adverse effect on adult social care. But there remained flexibility as to how any such effect on disabled persons could be minimised and mitigated, and I am satisfied that the council kept an open mind as to the precise policies that would be implemented.”

The judge therefore concluded that it was “sensible, and lawful”, for Lancashire first to formulate its budget proposals and then – at the time of developing the policies under challenge – to consider the specific impact of proposed policies that might be implemented within the budgetary framework.

In relation to the FACS policy and the Charging Policy, Mr Justice Kenneth Parker said there was “simply no foundation” for the claimants’ allegation that the assessment of impact carried out by Lancashire was inadequate.

“By the time that the decision had been taken to change the FACS criteria for eligibility and to amend the charging policy the defendant had carried out a detailed and comprehensive analysis of the probable impact on service users, in particular, disabled persons both those affected by the change in eligibility criteria and those affected by the charging policy,” he said.

The judge added that Lancashire had considered how the probable adverse affects might be mitigated. This included reassessing all services users currently in the ‘moderate’ band. There was an expectation that this would see a relatively large proportion of these services users assessed into a higher band.

Other mitigating steps included providing access to the council’s Help Direct signposting service and its Telecare Services.

The claimants had argued that the mitigating steps were inadequate. However, Mr Justice Kenneth Parker said the challenge was not a Wednesbury challenge to the reasonableness of the council’s budget or the policies it had adopted, but rather that it had failed to have due regard under the DDA.

“Whether or not the mitigating steps were adequate was a matter for the council to determine,” the judge said. “The fact that the council did direct its mind towards the question of what mitigating steps could be taken so as to lessen the impact of the relevant policies on affected users demonstrates that the council did in fact have due regard to the matters specified in the DDA.”

The judge therefore concluded that Lancashire had complied with its duties under s.49A of the DDA.

Lancashire County Council instructed Sam Grodzinski QC and Janet Kentridge of Matrix Chambers.

Philip Hoult

Details

02.Sep.2011

The so-called “custody provisions” for the offence of corporate manslaughter have come into force today and will apply to organisations such as prisons and secure hospitals, the Ministry of Justice has confirmed.

The Corporate Manslaughter and Corporate Homicide Act 2007 created a new statutory offence of corporate manslaughter, whereby an organisation can be found guilty if the way in which its activities were managed or organised caused a death and amounted to a gross breach of a relevant duty of care to the deceased.

A substantial part of the breach must have been in the way activities were managed by senior management.

The 2007 Act came into force on 6 April 2008, except for the custody provisions. Today’s changes mean the law will “apply to deaths of persons owed a duty of care by virtue of: being detained at a custodial institution, or in a custody area at a court or police station, at a removal centre or short-term holding facility, transported in a vehicle or being held in any premises in pursuance of prison escort arrangements or immigration escort arrangements, living in secure accommodation in which the person has been placed, or if the person is a detained patient.“

This will cover custody providers including prisons, secure hospitals, police and juvenile detention facilities. The changes also extend the law to apply to Ministry of Defence and UK Borders Agency customs custodial facilities.

An organisation convicted of the offence could face unlimited fines, be ordered to change their polices and be forced to publish details of their fines.

“Today’s change increases the accountability of custody providers (public and private) under the criminal law,” the MoJ said.

In a circular, the Ministry added: “It is worth noting that the custody provisions do not create additional duties of care. All custody providers already owe duties of care to detainees, to the same extent that they do to e.g. their staff or the public, by virtue of one of the other duties contained in the Act. However, once the custody provisions are commenced the specific duty of care owed to detained persons will be relevant for the purposes of the offence in the Act.

Human rights group Liberty said the changes had finally rectified for certain people – often the most vulnerable and isolated – “a gaping hole in the government’s approach to protecting life”.

In its blog, it said: “The new offence means public bodies can now face prosecution if senior management failings amount to gross negligence and result in the death of someone in custody. This was a provision that Liberty, alongside other campaigners, fought hard for when the Act was being passed. When the Bill was tabled it applied solely to private organisations – only intense lobbying secured an amendment extending its remit to public bodies as well.

“Before today, if a detained mentally ill person died in hospital, a prisoner hanged himself in his cell or a foreign national died while being deported, there was no formal corporate accountability available; no enforceable sanction for the deadly institutional and systemic failings that may have been responsible.”

Liberty said it remained concerned about the extent of exemptions under the 2007 Act, and the high threshold required for charge. However, it said the new offence was crucial.

“It will ensure accountability and encourage best possible practice to try and minimise the risk of deaths in custody,” the group added.

According to Liberty, there have been 333 deaths in police custody over the last decade or so, “not to mention deaths in other detention facilities nationwide. Let’s hope the introduction of this new offence will cut that number”.

Philip Hoult

Details

17.Aug.2011

Claimant solicitors have hailed a Court of Appeal ruling on the circumstances in which social services departments owe a duty to provide accommodation and support to vulnerable adults in need of care and attention.

In the case of SL v Westminster City Council [2011] EWCA Civ 954, ‘SL’, an Iranian failed asylum seeker, became homeless in October 2009. In December 2009, after learning of the death of his partner in an Iranian prison, he attempted suicide and was admitted to hospital as an in-patient where he was diagnosed as suffering from depression and post-traumatic stress disorder.

SL argued that, on discharge from hospital in April 2010, he required accommodation and support from Westminster City Council social services. Under section 21 of the National Assistance Act 1948, local authorities must make arrangements for the provision of residential accommodation for adults in need of care and attention which is not otherwise available to them.

Overturning a High Court decision of last year, the Court of Appeal held that the services SL was receiving from his mental health social worker amounted to ‘care and attention’ as his social worker was monitoring his mental state at weekly meetings and arranging for him to receive counselling and the services of a befriender, services he could not provide for himself.

Lord Justice Laws pointed out that ‘care and attention’ within the legislation was not limited to acts done by the local authority’s employees or agents. He added that the legislation also did not envisage any particular intensity of support in order to constitute ‘care and attention’.

The judge suggested that ‘care and attention’ is not ‘otherwise available’ unless it would be “reasonably practicable and efficacious to supply it without the provision of accommodation”.

Lord Justice Laws said it would be absurd for Westminster to provide a programme of assistance and support without also providing the “obviously necessary basis of stable accommodation”.

Law firm Pierce Glynn, which acted for SL, said: “This is a very significant and helpful decision which will assist many vulnerable people, particularly those with mental health problems, to access accommodation and support.”

Maxwell Gillott solicitors and Adrian Berry of Garden Court Chambers acted pro bono for the Freedom from Torture and Mind charities, which gained permission to intervene in this case.

Victoria Pogge von Strandmann, solicitor for Freedom from Torture, said: “This judgment clarifies that local authorities owe a duty to accommodate and support those who need looking after as a result of mental health problems, including trauma resulting from torture, where accommodation is necessary in order for that care and attention to be effective."

SL was granted indefinite leave to remain in the UK during the course of the case, which made him eligible for accommodation under the Housing Act 1996, but the Court of Appeal decided to hear the case because of its wider importance.

John Bolton, Westminster council’s interim strategic director of adult social care, said: “While we respect the Court’s decision we do not believe it is the right one and we will now look at the option of appealing to the Supreme Court.”

Mark Smulian and Philip Hoult

Details

15.Aug.2011

A case over the payments to be made by a county council to a severely disabled man is to go all the way to the Supreme Court.

A panel of three judges agreed earlier this month to grant the claimant permission to appeal. The local authority involved, Cambridgeshire County Council, successfully defended the case in the Court of Appeal in June.

The case of KM, R (on the application of) v Cambridgeshire County Council [2011] EWCA Civ 682 (09 June 2011) concerns a 26-year-old man (KM) with a range of serious physical and mental disabilities. He was born with no eyes or optic nerves, has learning difficulties and an autistic spectrum disorder and other medical problems.

Despite this, he has musical and linguistic qualifications but needs significant support in feeding and self care and a guide outside his home. Cambridgeshire assessed the direct payment required to provide for his assessed needs as £84,678 a year, which his mother argued was insufficient and had been irrationally arrived at.

Giving the judgment of the Court of Appeal, Sir Anthony May, President of the Queen’s Bench Division, said the judges had “some general sympathy with the submission that Cambridgeshire did not give adequate reasons, since the process by which they eventually arrived at an intelligible explanation of the £84,678 was…tortuous”.

He added: “There was however an intelligible eventual explanation in the letter of 3 June 2010, which was before proceedings were started. The question for us is whether that explanation was sufficient, coherent and rational and whether in the result it demonstrated that the £84,678 met the statutory requirements.”

The Court of Appeal also held that the needs assessment was adequate. “There of course has to be a rational link between the needs and the assessed direct payments but, in our judgment, there does not need to be a finite absolute mathematical link,” Sir Anthony said.

One of the reasons for this, the judge said, was that local authorities “whose funds are not limitless, are both entitled and obliged to moderate the assessed needs to take account of the relative severity of all those with community care needs in their area”.

The rationality challenge failed because Cambridgeshire had not accepted that KM’s care would cost £18.10 an hour as his family claimed and it was not irrational for it to arrive at a different figure.

“In our judgment, the explanation of the £84,678 in the letter of 3 June 2010 was rational,” the judges ruled.

“It properly showed how that sum had been reached, and sufficiently demonstrated that direct payments of that assessed amount would meet KM's assessed needs. This in substance addresses the grounds of appeal and for this reason the appeal fails.”

Mark Smulian

Details

11.Aug.2011

A charity’s investigation for the BBC Radio 4 programme You and Yours has found that more than 2,000 care homes in England have no registered manager.

Figures obtained by the Action on Elder Abuse charity under Freedom of Information legislation from the Care Quality Commission showed that no-one was named as being in charge of 2,200 out of the 24,000 homes in England.

Homes should have registered managers legally responsible for running each home.

Gary Fitzgerald, chief executive of Action on Elder Abuse, told the programme that the figures painted a “frightening picture of the state of residential care in England”.

He added: “The registered manager holds a crucial role in establishing and maintaining standards of quality and to have so many homes with requirements of this type is appalling.”

Many care home providers now questioned whether the CQC was fit for purpose, Fitzgerald added.

Oliver Thomas, director of Bupa Care Homes UK, which has around 265 care homes in England said: “The CQC system can be slow to register managers who have been in post for a while.

“I am still seeing registrations being returned to me from October last year.”

Care home provider Barchester told the programme that in some instances it had taken the CQC more than five months to register a manager. It currently has 29 posts awaiting registration.

CQC's operations director did not accept delays on the regulator’s part were the reason for so many unregistered managers.

“It is the provider's responsibility to have a registered manager. It is the CQC's responsibility to make sure registration is timely and robust,” Amanda Sherlock said.

"Last October, at the point of transition into the new process, there were some backlogs. We have worked very hard to clear them and are now processing the vast majority of applications within eight weeks.”

And it appears the new registration process has had other unintended consequences.

Action on Elder Abuse also said the number of CQC inspections of care homes had fallen significantly from 10,856 in 2009-10 to only 3,806 in 2010-11.

Sherlock said the regulator had had to divert resources into the “very challenging” re-registration process, but inspections were now increasing.

“I'm absolutely committed to achieving a figure of a 1,000 a month by the end of this financial year,” she said.

Mark Smulian