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16.Sep.2010

The Care Quality Commission has unveiled an overhaul in its approach to assessing quality for health and adult social care.

The watchdog will now focus on three outcomes for 2010/11, rather than seven. They are:

• Improved health and wellbeing
• Increased choice and control, and
• Maintaining personal dignity and respect.

“We will pay particular attention to the way in which safeguarding, putting people first and use of resources have been key drivers for effective delivery of these outcomes,” the CQC said.

“This will provide a clear focus to the assessment and has been developed with key stakeholders, including people who use services.”

The Commission insisted that its approach would be “targeted, proportionate, risk-based and make the most efficient use of publicly available data”. It said it will publish detailed guidance on the 2010/11 assessment of councils in the autumn.

The current programme of service inspections will conclude this month, and the CQC is proposing to develop the new approach by spring 2011.

“These revised service inspections will have a focus on the primary responsibility of local authorities in adult safeguarding, though with the flexibility to address over time other areas of concern in terms of outcomes for more vulnerable groups in the community,” it said.

The shake-up follows a consultation that received more than 462 responses to the CQC’s proposals.

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08.Sep.2010

There is no longer an “as we are” option for local authorities when it comes to providing care for older people, law firm TPP Law has warned.

Speaking at the Caring for Older People conference, Director Matthew Wolton said: “They will have to act and to explore alternatives around providing care for older people in the medium and long term. The nature of the authority, their current set up and future political direction will have much to do with the choices they make.”

Wolton was also launching the firm’s special report, Future Service Models for Adult Social Care. The report explores three future service models:

• In-house local authority trading companies
• Transfer of services into a social enterprise
• Partnerships with the independent sector.

TPP Law estimated – based on the difference in cost between local authorities and the private sector in providing residential care services – that savings of anywhere between £250m and £375m could be achieved through outsourcing.

“While some services could be provided with varying degrees of local authority involvement, others could transfer to independent providers, encouraging local authorities to become service commissioners rather than service providers over time,” the firm said.

Wotton argued that a tipping point had been reached with the arrival of personalised budgets and massive public sector debt.

A copy of the report can be downloaded here.

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08.Sep.2010

The Court of Appeal has clarified the position of restricted patients who are to be dealt with under the Immigration Act, writes Sallie Harrington.

MJ was a 28-year-old Angolan man who arrived in the UK when he was 12 to join his father, who had been granted leave to remain as a refugee. He also was granted indefinite leave to remain. He suffered from a learning disability and had been diagnosed with schizophrenia. MJ had been convicted of a number of offences, most of which took place before he was 21, and this had lead to his being admitted to hospital under sections 37 and 41 of the Mental Health Act 1983 (MHA).

The Home Secretary decided to deport MJ under the Immigration Act 1971, on the grounds that due to his convictions, deportation would be conducive to the public good. It was believed that he was highly likely to re-offend. When MJ’s appeal to the Asylum and Immigration Tribunal was dismissed, he applied to the High Court for a review, and an order for reconsideration was made. MJ was again unsuccessful, however, so he appealed to the Court of Appeal. The principle issues in the appeal were whether the Home Secretary could decide to deport MJ while he remained a restricted MHA patient, and if so, whether that decision breached MJ’s rights under Article 8 of the European Convention on Human Rights. (MJ v Home Secretary [2010] EWCA Civ 557)

Section 37 of the MHA applies to a person who has committed an imprisonable offence and has a mental disorder of a nature or degree that warrants treatment in hospital. Section 41 applies certain restrictions where it is necessary to protect the public from serious harm. A ‘restricted’ patient will continue to be liable to detention until discharged under other provisions of the MHA. Section 86 of the Act provides that a patient who is a foreign national may be removed to his country of origin, provided proper arrangements are in place and removal would be in his interests. MJ argued that he could not be deported under the provisions of the Immigration Act while he remained subject to the MHA.

In the case of a patient in hospital, it was the policy of the UK Border Agency not to deport him until he was ready to be discharged into the community. The Court of Appeal heard that in practice, the patient would be conditionally discharged under section 42(2) of MHA, the condition being that he transfer to the place from which he would be conveyed to his country of origin.

The Home Secretary relied on the case of R (X) v Home Secretary [2001], in which a patient who had been refused leave to enter and remain in the UK was removed to hospital under section 48 of the MHA before being made subject to a deportation order. While the facts of that case were different, the Court of Appeal accepted the fundamental point that the Immigration Act regime was not circumscribed by the MHA. It was apparent that Parliament had contemplated the provisions of the Immigration Act when drafting the MHA - there is a reference to it in section 86 - and had not made any express limitation on the application of that Act.

While the Home Secretary cannot disregard mental disorder when making a decision to deport someone, the fact that that person is subject to the MHA will not in itself exclude a deportation order being made under the Immigration Act. The immigration provisions may cut across section 86 and a person may therefore be removed on the basis that such is in the public’s interests if not his own.

Article 8 requires a balancing act between the individual’s right to respect for his private life against the wider matters of public interest set out in Article 8(2). Although the Asylum and Immigration Tribunal had given careful consideration to whether the deportation of the appellant would be a disproportionate interference with his Article 8 rights, the Court applied Maslov v Austria [2008] ECHR 546 and concluded that the decision of the Tribunal was flawed. Not only was it necessary to consider the cumulative effect of the factors affecting a patient’s Article 8 rights; where he has spent all or most of his childhood and adolescence in the host country, very serious reasons will be required to justify expulsion. That is particularly so where the patient committed the relevant offences as a juvenile. The tribunal had failed to demonstrate such serious reasons in this case.

While the applicant in this case succeeded on what the Court acknowledged was a narrow point, many others may be affected by the judgement. People seeking refuge in the UK may have experienced violence or intimidation in their country and been exposed to significant risks during their journey to the UK. The immigration process itself will be unfamiliar, confusing and is often subject to significant delays; all of which is likely to have a psychological impact on the applicant. Coupled with a lack of social support, possible racial discrimination and limited knowledge of the health care system in the UK, it is not surprising to find that an applicant’s mental health suffers. The Office of National Statistics reported in 2004 that “many factors for youth crime are shared with risks for psychiatric disorders. Looked after children, young people who are homeless and young offenders are among groups most at risk for psychiatric disorder.”

The Court of Appeal’s judgement allows immigration control to be put ahead of the care of patients under the Mental Health Act even, as in this case, where the patient is a lawful resident in the UK. The judgement also however emphasises the need for immigration authorities to properly consider the severity of the impact of deportation on the individual before concluding their rights are outweighed by wider public interests.

Sallie Harrington is an associate in the local government team at law firm Weightmans LLP. She can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it.

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07.Sep.2010

Three in four members of the public (74%) are unsure of the level of care that they, an older friend or a relative are entitled to under the care system for older people, according to research by a national charity.

Surveying more than 1,300 UK adults between the ages of 18 and 90, Counsel and Care also found that:

• 79% felt that not enough is done to tell people about the care options available
• 71% do not think that the government has a clear and consistent policy on care and support of older people
• 64% had not thought about how to fund their own care
• Only 21% agree with the current council financial assessment and the means test for care.

The research also revealed uncertainty over the level of care advice and provision people are entitled to from their council.

Some 42% do not think councils offer a free assessment of an older person’s needs, Counsel and Care said, when all local authorities are obliged to provide such an assessment for anybody who appears to be in need.

The research also revealed that 69% believed their council would help if they had physical difficulties, and – “worryingly”, according to the charity – just over half (53%) said the same would apply for mental health.

Counsel and Care’s chief executive Stephen Burke said: “This research demonstrates that there is a fundamental lack of public understanding and knowledge of the care system. In the long term this could prove to be disastrous, especially when examining issues such as funding.”

Burke said it was vital that the public recognised the importance of planning ahead, both on a practical and financial level, to reduce the stresses and costs involved when accessing are in older age.

He added that universal information, advice and advocacy should be an integral part of the any new care and support system that is proposed by the recently appointed commission on the funding of social care. The commission is expected to report in the summer of 2011.

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01.Sep.2010

In the first case of its kind, the High Court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it. Caroline Cross examines the judgement.

In A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam), Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.

Mrs A then met Mr A in 2007 and moved in with him. Mr A also suffered from learning difficulties, and his intellectual functioning was only at 1% of people his age. Initially Mrs A was taking contraception in the form of a monthly depot injection, but she stopped taking the injections in June 2008, just before they were married.

Concerns were then raised because Social Services could not contact Mrs A. Her college course-coordinator, Miss S, reported fears over Mr A’s controlling and abusive behaviour: Mrs A was often upset at college, and had reported that she had been assaulted by Mr A. She also stated that Mr A had told her she was not to speak to Social Services. In particular, Mrs A also said that she no longer wanted to have injections because she and Mr A wanted a baby.

Later in the academic year, Mrs A thought she was pregnant. From discussions with Mrs A, Miss S became aware that Mrs A did not want a baby, but felt that if she did not have one Mr A would leave her. Mr A had told her that the child would not be removed from them because they were married. Mrs A was keen to take some form of contraception, but feared discovery by Mr A.

Allegations of domestic abuse continued to be made, including one allegation which led to Mrs A spending a night in respite care. However, the following day she refused to give an interview to the police. In May 2009 a letter written by Mr A, and signed by both Mr and Mrs A, was sent to Social Services. It stated that they no longer wanted Social Services interfering with their “sex life”. In June 2009 concerns were raised that Mrs A lacked capacity to decide whether she should take contraception: her doctor felt that she was no longer able to do so. In August 2009 there were further allegations of assaults, and Mrs A did not return to college in September.

Court of Protection proceedings

As a result the Local Authority then issued Court of Protection Proceedings in order to protect Mrs A’s interests. Following an initial hearing, in which the judge held that Mrs A lacked capacity to litigate, the Local Authority sought a Declaration that (i) Mrs A lacked capacity to decide whether to use contraception and (ii) that it would be in her interests to be required to receive it.

The medical evidence was sharply divided. Half of the medical witnesses indicated that Mrs A did not have capacity to decide on contraceptive treatment, while the other half believed that she did. A Consultant Psychiatrist, Dr K, stated that while Mrs A had a medical understanding of contraception, she lacked the necessary social understanding, namely the consequences of not using contraception. Further, he felt she was under the influence of Mr A to the extent that she could not freely weigh up the pros and cons of using contraception. As such, he did not believe she had capacity to make a decision as to its use.

Sections 1, 2 and 3 of the Mental Capacity Act 2005 were considered during the hearing. In particular, section 3, relating to “inability to make decisions” was subject to debate. Legal argument turned on the ambit of section 3(4):

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of–

(a) deciding one way or another, or

(b) failing to make the decision.

The Local Authority contended that the need for a person to comprehend “reasonably foreseeable consequences” required a woman to understand and envisage what would actually be involved in caring for a child. In contrast the Official Solicitor, on behalf of Mrs A, stated that to compel a woman to be able to envisage the wider ‘social’ ramifications of childbirth was not only impractical and unsupported by authority, but would also introduce subjective decision-making as to what a woman would be required to understand. This could lead to confusion between the test for capacity with that of best interests. Rather, a person need only understand proximate medical issues, namely “the nature, purpose and effects of the treatment” (per Thorpe J, Re C Adult: Refusal of treatment (1994) WLR 290).

Mr Justice Bodey chose not to widen the test from an understanding of “proximate medical issues” to an understanding of the “social consequences”. He based his decision on two grounds: First, when making a medical decision on capacity there is generally no opportunity to carry out a proper investigation into a woman’s background or her particular circumstances.

Second, “I am persuaded that this wider test would create a real risk of blurring the line between capacity and best interests. If part of the test were to involve whether the woman concerned understood enough about the practical realities of parenthood, then one would inevitably be in the realms of a degree of subjectivity, into which a paternalistic approach could easily creep. What exactly would a woman have to be able to envisage about parenthood, who would decide, and just how accurate would her expectations have to be?”

He then emphasised section 1(4), which prohibits a finding of incapacity on the grounds that a decision would be ‘unwise’.  He then went on to say: “Although in theory the reasonably foreseeable consequences of not taking contraception involve possible conception, a birth and the parenting of a child, there should be some limit in practice on what needs to be envisaged, if only for public policy reasons. I accept the submission that it is unrealistic to require consideration of a woman’s ability to foresee the realities of parenthood, or to expect her to be able to envisage the fact-specific demands of caring for a particular child not yet conceived…to apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering.”

Mr Justice Bodey therefore held that the test for capacity should seek to ascertain a woman’s ability to understand and weigh up the proximate medical issues, including: (i) the reasons for contraception and what it does (including the likelihood of pregnancy if not used); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects; (v) how easily each type can be changed and (vi) the effectiveness of each.

In applying this test, the judge held that, although Mrs A had sufficient understanding of the medical aspects of contraception, this in itself was insufficient: it was also necessary to determine whether she could weigh up the information under s.3(1)(c). He held that, due to the “completely unequal dynamic” between Mr and Mrs A, her decision not to continue taking contraception was not one she had taken freely: as a result of the coercive pressure applied by Mr A, which was fuelled in part by the use of domestic violence, she was unable to weigh the pros and cons of the decision. He therefore found that Mrs A lacked capacity.

However, to physically coerce Mrs A to take contraception “with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life.” Instead, Mr Justice Bodey chose to make no order as to Mrs A’s best interests. He did so on the grounds that Mr A had not as yet been included in any meaningful discussion on the issue of contraception and the couple had not had any therapeutic input or been given an opportunity to understand the matter: these avenues should be pursued first. He also accepted Mr A’s assurances that he would allow Mrs A access to social workers, and therefore did not regard it as necessary to impose an injunction on him.

Comment

A number of matters are notable in this judgment. First, Mr Justice Bodey’s decision not to extend the test for “reasonably foreseeable consequences” (s.3(4))  from “proximate medical issues” to “social consequences” is surely correct. To require a person to understand the social consequences of their actions would be to undermine the principles on which the 2005 Act was founded, namely “the common law rights of bodily integrity and autonomy and the principles of capacity and best interests” (Paul Bowen, Blackstone’s Guide to the Mental Health Act 2007, para. 10.00). Given the seriousness of any decision to deprive a person of capacity, it is crucial that courts interpret the statute strictly and guard against attempts to impose additional criteria that would water down the safeguards in the Act.

Second, the question remains unanswered as to whether, and if so in what circumstances, a woman can be forced to take contraception. In this case the issue was side-stepped because Mr Justice Bodey held that there were other, less intrusive, measures that had not yet been taken. However, if these measures fail, will the Local Authority seek a declaration that contraception be lawfully imposed? The additional issue is that Mrs A’s lack of capacity appears to be transitory: her doctor had found that she had been able to consent to, or decline, his advice on contraception prior to marrying Mr A, but that she was no longer able to do so thereafter; further, the court found that it was due to Mr A’s dominating influence that she lacked capacity to make a decision on contraception.

This case therefore differs from cases concerning persons with serious, permanent learning disabilities where local authorities have sought declarations that would allow them to be sterilised (eg In Re S (Adult Patient: Sterilisation [2001] Fam 15]. It also differs from such cases because it reflects the situation experienced by women who do not lack capacity but who feel under duress from their partners not to take contraception: however, Mrs A’s particular vulnerability as an adult with significant learning disabilities puts her in a uniquely difficult situation.

The overlap of issues pertaining to mental capacity, domestic abuse and bodily integrity makes this case particularly complicated: it will be interesting to see whether it will come before the courts again in the future.

Caroline Cross is a barrister at 1 Crown Office Row (www.1cor.com). This article first appeared on the chambers’ UK human rights blog (www.ukhumanrightsblog.com).

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20.Aug.2010

The Care Quality Commission (CQC) has joined with the Equality and Human Rights Commission (EHRC) to create new guidance for social care inspectors and assessors.

Once published, the guidance will be used by inspectors when they monitor care providers under the CQC's standards and registration requirements.

The new guidance includes:

• An overview of how the CQC's essential standards relate to equality and human rights law and what inspectors and assessors should do if they think it has been breached
• Information about equality and human rights for each of the key sections of our essential standards
• detailed charts which map the equality and human rights dimensions of the essential standards
• Prompts that inspectors and assessors can use about equality and human rights – complementary to the prompts in the essential standards of quality and safety.

Neil Kinghan, Director General of the Equality and Human Rights Commission, said: “We welcome all feedback and suggestions; from inspectors and assessors at CQC or those working in similar bodies; from managers and staff across the English health and social care sectors; and, most of all from people who use these vital services.  The more we can improve this guidance, the more useful it will be helping inspectors to secure high quality and safe care for all, as well as promoting the EHRC’s objectives in equalities and human rights.”

The consultation closes on 12 November 2010. The draft guidance can be found here: http://www.equalityhumanrights.com/human-rights/new-guidance-for-inspectors-and-assessors/