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19.Jul.2010

The Mental Capacity Act 2005 regime under which the Court of Protection can detain an incapacitated person if it considers the move to be in the individual’s best interests is compatible with the European Convention on Human Rights, the Court of Appeal has ruled.

In G v E & Ors [2010] EWCA Civ 822, E was a 19-year-old man who – it was common ground – lacked the capacity to make decisions about his own life. For a ten-year period until April 2009, when he was removed by the local authority, E had resided with F, who was initially his foster carer under the Children Act 1989. After his 18th birthday, E lived with F under an adult placement.

The local authority then removed E from F’s care, but without seeking the consent of F or G (E’s sister) or taking proceedings in the Court of Protection to justify the removal.

The sister then sought declarations that the local authority had unlawfully detained E in breach of Article 5 of the ECHR (the Right to Liberty and Security) and/or the Deprivation of Liberty Safeguards under the MCA 2005 and/or Article 8 of the ECHR (the Right to Respect for Private and Family Life). She also sought a declaration that it was in E’s best interests to return to live with F.

The judge at first instance, Jonathan Baker J, ruled that the local authority had deprived E of his liberty under Article 5 of the ECHR and MCA 2005 in removing him, contrary to the wishes of his carer and sister. The judge also decided that removal from F’s care breached E’s rights under Article 8 of the ECHR. Neither decision was controversial.

The judge then ruled that:

• an interim "best interests" declaration made by Ryder J on 8 December 2009 rendered E's detention at his then current address lawful;
• ECHR Article 5 did not create a "threshold condition" which had to be satisfied in deprivation of liberty cases before the court could go on to consider what was in the best interests of E;
• in making an order in E's best interests the court could authorise a deprivation of liberty under sections 16 and 48 of MCA 2005; and
• on the facts, albeit on a fine balance, it was in E's best interests to remain where he was, and not, in the interim, to return to F's care.

It was the second point about “threshold conditions” that was deemed the critical issue by the Court of Appeal, with the President of the Family Division, Sir Nicholas Wall, saying it is “plainly an issue of some considerable legal and practical importance, both for local authorities and for professionals dealing with the affairs of those who are said to lack capacity under the MCA 2005”.

Giving the lead judgement, the President said the court was of the opinion that MCA 2005 generally and the DOLS in particular plugged the Bournewood gap and were ECHR Article 5 compliant. “It is our view that MCA 2005 provides a ‘procedure prescribed by law’ for depriving [persons lacking capacity] of their liberty,” he ruled.

The judge added: “We do not think that ECHR Article 5 imposes any threshold conditions which have to be satisfied before a best interests assessment under DOLS can be carried out.”

The MCA 2005 “plainly does” embrace the principles set out in ECHR Article 5, Sir Nicholas suggested.

Following a plea from Jonathan Baker J for judges in the Family Division to be given additional resources to handle these complex cases, Sir Nicholas also recommended that similar applications should be listed urgently before the President of the Family Division, “who will be able to deal swiftly with any aspects of it which will not brook delay and who, if he is unable to retain the case himself, will be able to allocate it appropriately”.

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07.Jul.2010

The Communities Secretary this week called for much greater provision of services across local authority boundaries.

Speaking at the Local Government Association’s annual conference in Bournemouth, Eric Pickles said councils should have to justify how they work to voters.

He asked: “Is it really necessary to have separate education or separate social services departments? These sorts of mergers could actually make services work together, across boundaries, much more effectively. And it will free councillors to be focusing on what’s happening within neighbourhoods.”

The minister said having chief executives and elected leaders responsible for the same thing was “both expensive and pointless”.

“Couldn’t chief execs bring more to the table by working across boundaries, rather than replicating what the leader should be doing?”

The Secretary of State also said he wanted to “liberate” local authorities from regulation and red tape.

“It’s time to get rid of all the absurdities which are still on the statute book for no reason,” he said. “Like the law from 1919 which says that when councils want to buy new land for allotments, I’m supposed to sign it off.”

Predicting a “bonfire of the inanities”, the minister called on local authorities to tell the government about outmoded, outdated and obsolete secondary legislation. “We can dump it on the scrap heap together,” he claimed.

Pickles also said he would “set the pace” when it came to procurement, announcing that the Department for Communities and Local Government and its agencies would put all spending over £500 online.

He cited a situation where two major central government departments went to market on the same day for new electricity contracts, but had not spoken to each other first. “Instead of combining their purchasing power to drive prices down, suppliers played them off against each other. Prices actually went up.”

The minister said he would also be publishing the plan to shake up the DCLG shortly.

In previews of his speech, it was predicted that the Communities Secretary would say: "Is it really right, in this day and age, to have separate planning departments? Lawyers? Communications teams? Wouldn't it be better if people were working together? That's especially important for the highest levels and the most expensive people."

However, this was apparently left out of the final text of the speech.

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02.Jul.2010

Blackburn with Darwen Borough Council is to merge its senior management with the local care trust in a move predicted to lead to "far more advanced" integration than exists so far in other parts of the country.

If approved by the local authority’s executive board and the Blackburn with Darwen Teaching Care Trust Plus board on 8 July, the merger will first see the creation of a single integrated management team.

The SIMT, which the council claimed would be the first of its kind in the country, will be led by one chief executive for both organisations.

According to the meeting documents prepared for the boards, the integration of back office services and the senior management structure would be “far more advanced than in other parts of the country”, although the two organisations will remain separate legal entities.

The new chief executive will be supported by a three-strong executive team comprising a deputy chief executive and two managing directors, one for local government services and one for Care Trust Plus.

The model would also signal a “root and branch” review of senior responsibilities.

The move, which is expected to deliver some £2m in savings, follows the merger earlier this year of health, well being and social care commissioning through the creation of the Care Trust Plus.

Cllr Michael Lee, leader of the council, said: “Our partnership with the NHS in Blackburn with Darwen has a long and successful history and while we have to recognise the current economic situation we all face, this about far more than just making savings. It is a chance to reshape service delivery in the interest of the local community and protect services.”

Sir Bill Taylor, chair of the Care Trust Plus Board, said: “When we transformed our former PCT into a Care Trust Plus we promised to make our health, well being and social care more citizen and patient-focused. We all want more money spending on actual services and less on administration.

“So, just as merging health, well being and social care made sense, the obvious next step is the integration of management. The collaboration will bring about real and immediate savings and patient benefits.”

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29.Jun.2010

Local authorities need to develop policies not simply “on the Mental Capacity Act” but on all aspects of their activities as they relate to people who lack capacity, the Department of Health has insisted.

In a circular issued this week, the Department said this work was needed in relation to “housing, transport, complaints, consultations, partnership working, personalisation, carer breaks and so on”.

“It is now time to look at capacity issues more widely in relation to local authority activity,” the circular said.

The Department also stressed the importance in the present economic climate that any reduction or re-organisation of local authority services is fair and proportionate in relation to the needs of people who lack capacity.

It warned: “People who lack capacity are least able to complain and challenge; local authorities must therefore remain vigilant that the interests of this group of people are represented in changes and re-organisations. Local authorities should make their own arrangements for these interests to be clearly represented.”

The Department acknowledged that much progress has been made in implementing the MCA since it came into force in 2007, with local authorities achieving “a great deal” in terms of training staff, raising awareness, introducing best interests decisions, commissioning an Independent Mental Capacity Advocacy Service and launching new Deprivation of Liberty Safeguards.

However, it added that this major culture change needed to continue.

The circular, which confirmed the funding available for 2010/11, said best practice “suggested that:

• The focus of future work should be on the inclusion of people who lack capacity
• How decisions are made is often as important as the decision itself, and serious attempts should be made to involve people in all decisions being made about them
• DH guidance on eligibility for services advises that people who lack capacity need more frequent reviews than others, and
• ADASS-SCIE guidance confirms that IMCAs are a specialist resource that may be commissioned outside of the MCA for advocacy or other work in relation to this client group (such as home closures, direct payments).”

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22.Jun.2010

Plans for a much greater role for co-operatives in the delivery of public services require much more development if they are to work, the Secretary-General of umbrella organisation Co-operatives UK has said.

Ed Mayo told the Financial Times: “Co-operatives are businesses. It is not a charity model. It is a way to do things better and more fairly and to be innovative. It is not necessarily cheaper.”

Commenting on the growth in interest in co-operatives, he added: “It has been a sector and a movement that has just talked to itself. Now people are looking at the loss of trust in traditional banks and plcs and realising there is an alternative.”

Mayo’s warning comes just days after the chair of the Charity Commission, Dame Suzi Leather, questioned the ability of the voluntary and charity sector to fill all the gaps left by cuts to public services.

The Queen’s Speech last month promised an expanded role for the third sector and co-operatives but this will require legislation. The project is being co-ordinated by Cabinet Office Minister Francis Maude.

Efforts will include opening up public services markets to allow social enterprise, charities and co-operatives to bid to run public services and an initiative to identify and remove barriers to involvement. Public sector workers will be given a new right to form employee-owned co-operatives and bid to take over the services they deliver.

The first measures to implement this policy are expected to be in place by the autumn.

Meanwhile, Labour-controlled Lambeth Council unveiled plans to be come the UK’s first “co-operative council” by 2014. The authority is considering offering taxpayers a discount on their council tax if they get involved in running local services.

Co-operatives UK represents 4,280 co-ops in the UK.

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15.Jun.2010

Local authorities and other public sector bodies are to be the subject of an Equalities and Human Rights Commission inquiry into whether they are fulfilling their legal obligations to prevent disabled people from being harassed.

The inquiry, which has the “full support” of the Minister for the Disabled Maria Miller, will scrutinise the efforts of a range of public bodies, including:

• Councils, including social services
• Social housing providers, including Arm’s Length Management Organisations
• Police forces
• Schools
• Bus companies
• Train companies
• Other public transport providers.

The organisations will be asked to disclose what steps they are taking to meet their legal duties.

The EHRC warned that those found to be failing in their duties could face enforcement action. The Commission previously wrote to Hinckley and Bosworth Council, demanding evidence that it is compliant with its legal duties following the Coroner’s inquest into the deaths of Fiona Pilkington and her daughter Francecca.

The inquiry will examine the support that victims of disability-related harassment are given as well as the preventative measures put in place by organisations in England, Wales and Scotland.

The rights watchdog is calling for evidence from members of the public. It will also be working closely with organisations of and for disabled people.

Mike Smith, lead commissioner for the inquiry, said: “By highlighting the failures as well as learning from examples of good practice, the Commission’s inquiry will help public bodies try to ensure that future tragedies are prevented and transform the way that the people of Britain value and respect disabled people.”

The Commission has said it will consider using its legal powers to call public bodies to account, either by compelling to give them evidence or by summoning witnesses. It plans to hold hearings in September 2010.