Details

16.Feb.2011

The government has announced plans to reform the regulatory framework governing the 1.4m people who work in the health and social care professions, in a bid to make it proportionate and effective.

Justifying the move, the government said the current system was “increasingly complex and expensive, and requires continual government intervention to keep it up to date”.

The Department of Health said any new regime should impose the least possible costs and complexity, while maintaining safety and confidence for patients, service users, carers and the wider public.

It insisted that the vast majority of those working in health and social care were “committed individuals with a strong sense of professionalism who aspire to deliver the highest standards”.

But the Department added that it was vital that swift action was taken – whether by employers or national regulatory bodies – where there was poor practice or behaviour that presented a risk to the public.

Under the DH’s Enabling Excellence proposals:

• Power will be devolved to the regulators, “while enhancing accountability and sustaining effective national safeguards where necessary”
• Growth and costs of the regulatory system will be constrained "at a time when health and social work professionals are facing pay constraints"
• A system of assured voluntary registration will be developed as a more proportionate approach to ensuring high standards in the workforce, and
• The regulatory structure will be simplified.

The government said that devolving powers to regulators would give them greater freedom to define their own processes without approval from the Privy Council or the Department of Health. At the moment every time the rules are changed – in relation to registration, investigation and complaints – the government has to get involved.

Voluntary assured registration meanwhile was “intended to improve standards and drive up the quality of care without imposing the costs of mandatory regulation”.

The Council for Healthcare Regulatory Excellence (CHRE) will be asked to set the standards for registers and accredit organisations meeting its standards. “That way, the public and employers would be able to easily identify whether a worker belongs to a register that sets robust standards for those registered,” the DH said.

The Department added that it intended to incentivise employers to use workers on voluntary registers. “In future, local authority commissioners could give preference to providers using workers on voluntary registers,” it suggested. “This could be taken into account in the ‘excellence rating’ that the CQC will shortly be consulting on.”

The government insisted that its abolition of the General Social Care Council was part of a wider programme of social care reform which would deliver a more independent model of regulation and strengthen the social work profession.

The CHRE is also to become more independent and self-funding.

Presenting Enabling Excellence to Parliament, Health Secretary Andrew Lansley said: “Regulation of healthcare workers and social workers makes an important contribution to safeguarding the public, including vulnerable adults and children. But we need an approach to professional regulation that is proportionate and effective.

“The changes we are progressing through the Health and Social Care Bill will give greater independence to those who work in healthcare across the UK and social care in England, to their employers and to the professional regulatory bodies. This will be balanced by more effective accountability in how they exercise that freedom.”

The government has tasked the Law Commission with running the reform project. It is expected to report in 2014 with a view to new legislative proposals being consulted on before the end of the current Parliament.

Frances Patterson QC, Law Commissioner for Public Law, said: “The existing legislative landscape has developed piecemeal over the years, leaving the law fragmented, difficult to access and inefficient. The legal framework is an impediment to the freedom that the regulators need to improve their performance, cost effectiveness and service to the public, rather than an enhancement.”

Patterson added that the Law Commission would aim to modernise and simplify the law to create a single over-arching structure within which the regulators can work.

The Health Secretary also announced that herbal medicine practitioners would be regulated from April 2012.

Details

10.Feb.2011

The Supreme Court has handed down a major judgment on the protection of children’s rights. Manjit Gill QC and David Nicholson analyse a ruling that could have implications for a wide range of fields.

As the only case at Supreme Court level providing guidance specifically on the duty to protect the best interests of the child with reference to the importance to be placed on the child’s British nationality, the judgment in ZH (Tanzania) v SSHD [2011] UKSC 4 (1 Feb 2011) is of particular relevance for immigration lawyers, family lawyers and social services departments. However, the reasoning may also have implications for the approach to be adopted in other fields (e.g. criminal cases, decisions to detain mentally unwell persons) where the issue of separation of children from a parent is being considered.

The single appellant was the Tanzanian mother with her two British children, born of a British father in the United Kingdom, being joined in as interveners. The principal issue concerned the weight to be attached to the best interests of a child when a parent or parents are to be removed from the UK and, more specifically, the importance to be attached to rights flowing from British citizenship when considering whether or not the Tanzanian mother, who had no rights to remain in the UK, should be removed. The parents were not living together but the father regularly visited the children and therefore played a meaningful role in their lives. He was an alcoholic suffering from HIV and could not reasonably be expected to visit the children if they were forced to go with the mother.

Shortly before the hearing, the Secretary of State accepted that on the facts, the Asylum and Immigration Tribunal had been wrong to dismiss the mother’s appeal under Article 8 ECHR and that the Court of Appeal had erred in upholding the Tribunal’s determination. The Court however decided to hear the case in order to give guidance on the issues.

The leading judgment was given by Lady Hale. The Court considered the duty flowing from the United Nations Convention on the Rights of the Child 1989 article 3, that the best interests of child shall be a primary consideration in all decision-making. It held that in certain types of decisions which directly affect a child’s upbringing, the protection of the child’s best interests would be the determining factor. However, in the case of other decisions which indirectly affect a child, such as decisions where the parent or parents are to live, the best interests of the child is a primary consideration. (Such decisions include decisions to detain or imprison).

The Court assessed how the child’s best interests should be evaluated in the context of separated families. It also considered section 55 of the Borders, Citizenship and Immigration Act 2009 which seeks to implement the article 3 duty, various General Comments of the United Nations Committee on the Rights of the Child, and various decisions of international courts.

The Court held that decision makers, and the Courts charged with considering appeals against their decisions, should apply the principle that in such cases the starting point is that the children’s best interests must be a primary consideration. The next question would be whether their best interests are outweighed by the strength of any other considerations, including the demands of immigration control.

The Court held that where the children were British nationals, that factor was a very significant and weighty factor which had an “intrinsic” and “particular importance” in the assessment of the children’s best interests. It was therefore necessary to take into account that the children stood to lose the UK’s protection and its support, socially, culturally and medically, and in many other ways. It was necessary to take into account the resultant social and linguistic disruption of their childhood, the loss of their homeland, the loss of educational opportunities available to them in the UK, and the resultant isolation from the normal contacts of children with their father and their father’s family. Lord Kerr noted that to diminish a child’s right to assert his or her nationality will not normally be in his or her best interests and that if a child is a British citizen, this has an independent value which must be weighed in the scales.

The Court also noted that the Court of Appeal had wrongly endorsed the Asylum and Immigration Tribunal’s decision to assess the reasonableness of the children living in Tanzania with their mother in the light of the fact that the mother’s immigration history was appalling and that the children had been conceived by her in the knowledge that her immigration status in the UK was precarious. The Court held that this should not have diminished the children’s interests when they could not be blamed for the mother’s activity. As Lord Hope put it: “It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible.” This principle, of not visiting the sins of the parent on the child, may well have importance for other fields.

On the facts, the Court held, despite the mother’s appalling immigration history, that the best interests of the children were such that there could only be one outcome and the Tribunal ought to have allowed the mother’s appeal against the Secretary of State’s decision to remove her.

The Court also emphasised the importance of the guidance of the UN Committee on the Rights of the Child in General Comment No 12 (2009) on the Right of the Child to be Heard.

The court’s decision calls on decision-makers to ensure that, wherever necessary, children's voices are heard at an early stage of the decision-making process, if necessary through separate representation. Decision-makers must be at least prepared to consider hearing directly from a child who wishes to express a view and is old enough to do so.

The case is a very significant milestone in the protection of children's rights generally. It requires decision-makers and courts to recognise the particular benefits that flow from the possession by a child of British Citizenship. It is also likely to inject a more rigorous approach to the taking into account of the best interests of the child wherever decisions are made which may indirectly lead to the separation of a child from a parent, including decisions to imprison or detain as well as to expel or to remove from the country. This is likely to have an impact on sentencing decisions, decisions of social services departments, extradition, immigration, and other forms of detention such as the detention of the mentally unwell. In all such cases the best interests of any children involved must be taken into account as a primary consideration of very significant weight. The court's reasoning adopts the approach that the sins of parents are not to be visited on children.

This does not mean that parents who abuse immigration control can never be removed, nor does it mean that parents who commit crimes can never be imprisoned or detained if this is likely to be against the child's best interests. However, the Supreme Court has set the bar at a high level and, in this particular case, it held that, even though the mother's immigration history was appalling, the best interests of her children required that she should not be removed from this country.

Manjit S Gill QC and Edward Nicholson are barristers at No5 Chambers, London (www.no5.com).

Details

07.Feb.2011

Pembrokeshire County Council has warned that a High Court judgment ruling that the authority's approach to setting care home fees was unlawful will cost it an extra £1.5m this year.

The case of Forest Care Home Ltd and Ors, R v The Welsh Minister and Anor [2010] EWHC 3514 involved claims brought by the owners of four residential and nursing care homes for older people and people with dementia.

They argued that Pembrokeshire was not paying the correct weekly fees for its residents. The claimants also raised five sub-grounds in relation to the methodology used in the assessment of the costs of care home providers.

Mr Justice Hickinbottom said the council had been fully entitled to take into account its own financial position when determining the level of accommodation and care services upon the minimum required by section 21 of the National Assistance Act 1948, and in setting the fee rate for those who provide the services.

“However, it erred in law in failing properly to take into account other factors which I have identified in this judgment, such as the potential adverse consequences of the decision for providers and residents, which it was required to balance against the constraints on its own resources.”

The judge added: “The manner in which the council dealt with capital costs for the purposes of setting the rate was simply methodologically wrong; but the other sub-grounds succeed because the council failed to take into account matters other than its own financial resources in a proper and lawful way.”

Mr Justice Hickinbottom outlined a catalogue of errors made by the council in calculating the appropriate fees, including:

• an unlawful approach to the assessment of providers’ capital costs for the purposes of setting the fee rate
• a failure to consider local factors in relation to staffing costs
• a failure to recognise that different sized homes have different costs, with larger homes clearly benefitting from the economies of scale
• a failure to take into account inflation.

The council is raising its payment from £390 a week per resident to £448, backdated to the start of the financial year with an additional payment reflecting the loss of interest which could have been earned if the new fee had been paid since April.

Pembrokeshire County Council Leader John Davies said: “This new fee means an additional cost to the council of almost £1.5m. This will inevitably result in a significant challenge to the council in ensuring that it continues to meet its statutory obligations to vulnerable individuals who have been assessed as requiring support."

Ed Archer and Philip Hoult

Details

03.Feb.2011

A claimant seeking permission to appeal a local authority’s age assessment has to show he has a properly arguable case on the facts in the light of the evidence before the court, the local authority’s assessment and other relevant facts or circumstances, the Court of Appeal has ruled.

In FZ v London Borough of Croydon [2011] EWCA Civ 59, Sir Anthony May, President of the Queen’s Bench Division, said that at the permission stage in an age assessment the court should ask “whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing”.

“If so, permission should be refused,” the judge said. “If not, permission should normally be granted, subject to other discretionary factors, such as delay. We decline to attach a quantitative adjective to the threshold which needs to be achieved here for permission to be given.”

Sir Anthony pointed to the fact that – beyond the “very useful” general guidance given in the case of R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin) – there was no formalised central government guidance as to how local authorities should conduct age assessments. “It is a matter for consideration whether such guidance might be prepared.”

The case in question concerned an unaccompanied asylum seeker from Iran who claimed to be 17 years old. The UK Border Agency accepted his claimed date of birth when he arrived in a lorry on 20 August 2009. He was then referred to Croydon Council for child welfare services.

The local authority disputed his age, carrying out an age assessment and a subsequent review that concluded he was two years older. It was agreed that he had mental health difficulties as a result of experiences in Iran.

The appellant applied for permission to bring judicial review proceedings to claim the council had acted unlawfully.

However, at a hearing on 26 November 2010, a deputy High Court judge refused permission on the basis that there was no realistic prospect that at a substantive fact finding hearing the court would conclude that the claimant was younger than the local authority had determined him to be. This was on the basis that the authority had conducted a Merton-compliant assessment and that inconsistencies that had been relied on in the assessment were not material.

The deputy judge, James Dingemans QC, also rejected two procedural points – that provisional adverse conclusions were not put to the appellant, and the interview took place without an appropriate adult being present.

The Court of Appeal looked at three questions:

• Whether a local authority is obliged to give the person whose age they are assessing an opportunity to respond to provisional adverse findings which they are inclined to make
• Whether the local authority should in fairness offer the young person the opportunity to have an appropriate adult present at any age assessment interview, and
• How the court should address the question whether the factual issue of the young person’s age is arguable. Should it start by assessing the person’s positive claim, or should it first examine the apparent integrity of the local authority’s assessment?

Giving the judgement of the court, Sir Anthony May said it was “axiomatic” that an applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him.

“Obvious possible such points are the absence of supporting documents, inconsistencies, or a provisional conclusion that he is not telling the truth with summary reasons for that provisional view,” the judge said.

He added that in the absence of formal central government guidance, the court would not be prescriptive of the way in which this might be done, and would stand aside from requiring in every case a formal ‘minded to’ letter sent after the initial interview. “It is accepted that these matters should not be over-judicialised.”

Sir Anthony suggested that it was theoretically possible that a series of questions appropriately expressed during the course of the initial interview might fairly and successfully put the main adverse points which trouble the interviewing social workers.

However, he warned that that would be a haphazard way of doing it and one which would be intrinsically likely to lead to subsequent controversy in the absence of an expensive transcript of the interview.

Counsel for the appellant, Jan Luba QC, agreed that fairness could be achieved in this respect if the interviewing social workers were to withdraw from the interview room at the end of the initial interview to discuss their provisional conclusions.

“They could record these with brief reasons in writing on a form by means of which, upon returning to the interview, they could put the adverse points which trouble them to the person whose age they are assessing, thereby giving him the opportunity to deal with them,” the judge said. “The young person may be able to deal points then and there or he may say he needs more time, for example to obtain more documents. Either way, the interviewers could then withdraw again to consider his answers and reach their decision.

“This would be a modification of the procedure adopted in this case. We emphasise that this suggested outline procedure is not the only way in which fairness might be achieved in this respect.”

Sir Anthony ruled that, on this first issue, the procedure adopted in the case of FZ was not compliant with the requirements of Merton. When the interviewing social workers had withdrawn to consider their decision, on their return they had presented the appellant with their conclusions without first giving him the opportunity to deal with them. The conclusions were also not expressed with sufficient detail, the judge said.

On the second issue, Sir Anthony said it was generally accepted in a variety of contexts that, where children or vulnerable people are to be interviewed, they should have the opportunity to have an appropriate adult present. The fact that the appellant had not been given this opportunity contributed to the Court of Appeal’s decision as to whether he should be given permission to proceed.

On the third and, in the court’s view, most important issue, the President of the QBD said (as mentioned above) the court should “ask whether the material before it raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing”.

Sir Anthony said this was a case where permission to proceed to a factual hearing on evidence should be granted.

“One factor contributing to that conclusion is that there were two procedural lapses,” he explained. “However, our main reason is that we do not consider that the appellant’s factual case taken at its highest could not properly succeed in a contested factual hearing.”

The judge pointed out that the appellant was recorded as giving a reasonably consistent factual account, an initial apparent inconsistency was capable of being explained, and there were no glaring inconsistencies in his account nor clear analytical reasons why his account was unbelievable.

In addition, a vaccination card supplied to support his claim was not obviously a forgery, and the dates it contained for various vaccinations were positively consistent with his claimed date of birth and positively inconsistent with a birth date two years earlier.

Sir Anthony said general credibility, as judged by others such as social workers, was not alone sufficient for the court to refuse permission for a factual hearing before the court, “when it is for the court to determine in a disputed case the fact of the young person’s age”.

The Court of Appeal therefore granted permission to bring judicial review proceedings to determine the appellant’s age.

Sir Anthony added that the Upper Tribunal had sufficient judicial review jurisdiction under s.15 of the Tribunals, Courts and Enforcement Act 2007 for the purpose of a factual determination of the appellant’s age.

Such a transfer was appropriate, he said, because judges in the Upper Tribunal have experience of assessing the age of children from abroad in the context of disputed asylum claims.

“If an age assessment judicial review claim is started in the Administrative Court, the Administrative Court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal,” the President of the QBD added.

“The matter could be transferred for permission also to be considered, but the Administrative Court should not give directions for the future conduct of the case after transfer, and in particular should not direct a rolled-up hearing in the Upper Tribunal.”

Philip Hoult

Details

02.Feb.2011

The Court of Protection has ordered a local authority to provide sex education to a man with a moderate learning disability to see whether he can gain the mental capacity to consent to sexual relations.

In D Borough Council v AB [2011] EWHC 101, the primary issue was the legal test to be applied in determining whether the individual in question – “Alan” (not his real name) – had the mental capacity to consent to sexual relations.

The secondary issue was, if it was decided that Alan did not have capacity, what declarations the judge should make.

Alan was 41, with an IQ assessed at 48 and “seriously challenged in all aspects of his mental functionality”. The judge pointed out that the percentage of the population that is IQ 50 or fewer is under 1/2%, but added that this was a sizeable number.

Before proceedings commenced in July 2009, Alan shared a home with a man called “Kieron”. The accommodation was provided by the local authority, and Alan received a care package involving constant supervision within placement and in the community.

The judge said Alan was sociable and presented as an able man. He also had a vigorous sex drive, which had led to relations with persons of both genders.

Alan was reported to have developed a sexual relationship with Kieron, but separate incidents involving a young boy and two girls aged nine and ten saw the local authority get involved.

The council made an application for a declaration that Alan did not have mental capacity to consent to sexual relations and an order authorising a restriction of contact between Alan and Kieron, and Alan and another person, with a view to preventing further sexual relations taking place.

A district judge made interim declarations to this effect on 1 July 2009. Alan’s relationship with Kieron has since ended. However, Alan asked a representative of the Official Solicitor to allow him to have sex again, saying it would make him feel happy.

Examining case law and the Mental Capacity Act, Mr Justice Mostyn ruled that the capacity to consent to sex remains act-specific and requires an understanding and awareness of:

• The mechanics of the act
• That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
• That sex between a man and a woman may result in the woman being pregnant.

The judge also made a further observation: “I am sure that the first and second of these criteria is needed to be able to consent to penetrative anal sex and oral sex. I doubt if the third is. And I doubt if either the second or third is needed to be able to consent to sexual activity such as mutual masturbation. This leads to potentially serious management problems where different kinds of sexual activities are practised at different times.”

In this case, Mr Justice Mostyn declared that at the present time Alan did not have the capacity to consent to and engage in sexual relations.

On the secondary issue, an expert witness – Dr Hall – gave evidence that a programme of sex education, as proposed by the Official Solicitor, would be a bad idea, with Alan possibly left confused and with raised levels of anxiety. This could, he added, lead to deterioration in Alan’s presently very good and compliant behaviour.

But the judge said: “Dr Hall’s evidence is wholly valid when viewed through the prism of best interests. Yet I believe that an issue such as this must surely be subject to a threshold akin to that of significant harm, as is applicable to children when the state seeks to intervene under Part IV of the Children Act 1989. This must be implicit in s1(3) MCA. I am not satisfied that sufficient practical steps have yet been taken to see if Alan can have sex, with the result that the present régime of deprivation of liberty can be lifted.”

Mr  Justice Mostyn therefore ordered that his declarations were of an interim nature, the local authority should provide Alan with sex education in the hope that he gains capacity through that programme, and the matter should be returned to court for review after a period of nine months. This review would be to see what progress sex education was making, with a view to making final declarations.

The judge granted the local authority permission to appeal.

Details

27.Jan.2011

The High Court recently considered whether a woman under 18 was deprived of her liberty through her care home arrangements. Alex Ruck Keene and Victoria Butler-Cole analyse what could be a troubling judgement.

The case of Re RK [2010] EWHC 3355(COP) (Fam) concerned RK, a 17½-year old-woman who suffered from autism, ADHD, severe learning disability and epilepsy, and displayed aggressive and self-harming behaviours.

RK was moved to care home placements by the local authority under s.20 of the Children Act 1989 after her family became unable to care for her at home. The issue for the court was whether RK was deprived of her liberty in the care home placements. If she was, then being under 18, the DOLS regime would not apply, and the local authority would have to apply to the court for declarations authorising the placement, with the consequent reviews.

Mostyn J held that there was no deprivation of liberty, either on the facts, or as a matter of law. He held that where a child is placed under s.20 CA 1989 and the parents have a right under s.20(8) CA 1989 to refuse consent to the placement, there can be no deprivation of liberty.

Any restriction on RK’s freedom was the result of RK’s parents exercising parental responsibility by consenting to the placement, and thus the ‘subjective’ limb of the test for a deprivation of liberty could not be met. Nor was the objective test met, according to the judge, because RK’s care came nowhere near involving depriving her of her liberty. RK lived at the residential placement from Monday to Friday but attended school each day. She returned to her parents’ home every weekend. While at the placement, she was allowed unrestricted contact with her parents, and was subject to close supervision at all times, but was apparently not restrained or subject to a particularly strict behavioural management regime. The door to the placement was not locked, although if RK had tried to leave, she would have been brought back. In response to a submission that these arrangements amounted to confinement because they restricted PRKs autonomy, the judge said: “I am not sure that the notion of autonomy is meaningful for a person in RK’s position.”

He concluded: “I find it impossible to say, quite apart from s20(8) Children Act 1989, that these factual circumstances amount to a ‘deprivation of liberty’. Indeed it is an abuse of language to suggest it. To suggest that taking steps to prevent RK attacking others amounts to ‘restraint’ signifying confinement is untenable. Equally, to suggest that the petty sanctions I have identified signifies confinement is untenable. The supervision that is supplied is understandably necessary to keep RK safe and to discharge the duty of care. The same is true of the need to ensure that RK takes her medicine. None of these things whether taken individually or collectively comes remotely close to crossing the line marked ‘deprivation of liberty’.”

Further, the local authority was not detaining RK under any ‘formal powers’, as would be the case if, for example, a care order was in place. RK’s parents could remove her from the placement if they chose to withdraw their consent to it (even though on the facts of the case, there was no practical possibility of RK’s parents doing any such thing without the local authority’s assistance and provision of an alternative care package). If RK’s parents have decided not to remove her from the placement, the judge found it difficult to see how the State could be said to be responsible for her detention.

Comment

This decision is interesting and potentially problematic. It seems to represent part of a growing unwillingness on the part of the High Court to recognise deprivations of liberty on the objective test. One is reminded of the submission on behalf of the government in the Bournewood case when it reached the ECtHR that HL could not be deprived of his liberty, because if he was, then so were most residents of care homes and hospitals in England. The courts seem keen to ensure that that prediction is not fulfilled, even though HL was indeed found to have been deprived of his liberty.

On the subjective limb, it seems surprising that parents can consent to a placement that entails a deprivation of liberty for any child under 18 who is incapacitated by reason of a mental health problem, with no recognition of the obvious differences between infants and a young adult. The trick is to find a distinction which though artificial is not arbitrary: in this case, the authors fear that adhering to a ‘bright line’ categorisation sits uneasily with the more nuanced treatment of young adults in other areas of law, not least the Mental Capacity Act itself.

The judge’s analysis of the question of State responsibility is also questionable. It does not appear that relevant caselaw was cited which shows that the State does not have to be directly responsible for a deprivation of liberty to be liable under Article 5.  The authors find it difficult to understand how the concept of ‘formal powers’ for detention being necessary to engage Article 5 fits with HL v UK – the very reason the deprivation of liberty safeguards were introduced was that there was a breach of Article 5 where detention occurred without any formal basis or power.

The authors also note that the judge’s comment about autonomy not being a meaningful concept for someone in RK’s position is likely to raise hackles amongst those who work towards achieving greater independence for mentally disabled adults and young people. Clearly, RK will never achieve the sort of autonomy someone without her disabilities might enjoy. But there are no doubt many ways in which her autonomy can be promoted, and she can be helped to direct the course of her life, even if only in relation to expressing preferences and making choices about simple or immediate matters.

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