Details

16.Mar.2010

The laws in place to safeguard people affected by disability are extremely complex. In the first part of a two-part series, Belinda Schwehr looks at the responsibilities of public sector bodies.

Understanding the responsibilities of councils - when exercising public law or private functions - to safeguard those affected by disability from discrimination, requires consideration of the EU Treaties and the EC Equal Treatment Framework Directive, the Disability Discrimination Act (DDA) and subsequent secondary UK legislation, and the case law from the ECJ and UK Courts, interpreting these instruments.

Disability

Any physical/ mental impairment which has a substantial and long-term adverse effect on one’s ability to carry out normal day-to-day activities is within the protection from discrimination in relation to employment, the provision of goods, facilities and services or the disposal or management of premises.

Normal day-to-day activities

The Code of Practice requires consideration of the length of time an activity takes and the manner in which it is carried out. The effect of an impairment on the person’s ability to undertake particular day-to-day activities should be considered in respect of the impact on each activity and the resultant cumulative effect, to ascertain whether this is substantially adverse.

These activities are defined as mobility; manual dexterity; physical co-ordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of the risk of physical danger.

In general, day-to-day activities are things people do on a regular or daily basis; not activities which are ‘normal’ only for a particular person, or a small group of people. Section D of the Code provides a list of illustrative capabilities.

Who benefits from the protection against discrimination?

The ECJ has extended the scope of the protection to those indirectly affected by disability.

As was made clear in the EC Equal Treatment Framework Directive 2000/78/EC “any direct or indirect discrimination based on … disability…should be prohibited throughout the Community”.

Direct discrimination occurred when one person is treated less favourably, because of a disability, than another in a comparable situation.

Indirect discrimination was defined as an “apparently neutral provision, criterion or practice [that] would put persons having a … particular disability… at a particular disadvantage compared with other persons unless [it] is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or amending the provision, criterion or practice is deemed a disproportionate burden on the employer.”

It was traditionally understood that indirect discrimination was action which had an indirect effect on those persons categorised as disabled.

However, in Coleman v Attridge Law (C-303/06) (2008), the ECJ held it was unlawful even where the person directly affected by the action or inaction was not themselves disabled, but could demonstrate they had suffered a disadvantage on the basis of someone else’s disability.

Ms Coleman had a disabled child. He required specialised care provided primarily by her. Her contract of employment was terminated in 2005 and she went to the Employment Tribunal, alleging unfair constructive dismissal and less favourable treatment than other employees because she was the primary carer of a disabled child.

The ECJ found that this constituted direct discrimination on the basis that the principle of equal treatment was not limited to safeguarding only those people who themselves have a disability. The ECJ clarified that in such cases it was for the claimant to establish facts from which it may be presumed that there has been direct discrimination after which the burden of proof falls on the respondents, who must prove that there has been no breach of the principle of equal treatment.

This case was considered again nationally by the EAT in EBR Attridge Law LLP (formerly Attridge Law) and S Law v Coleman (2009) following a challenge by Attridge Law that the Employment Tribunal had distorted the DDA by reading in additional words so as to outlaw ‘associative’ discrimination.

The EAT found that the tribunal had jurisdiction to hear the claims, notwithstanding Ms Coleman was not herself disabled and furthermore that the tribunal had been entitled to supply additional words to the Act. Whilst such additions might change the meaning of the DDA, that in itself was not impermissible, provided it did not do so in a manner incompatible with the underlying thrust of the DDA. The proscription of associative discrimination was an extension of the scope of the Act, but it was fully in conformity with the aims of the Act as drafted because the concept of discrimination, on the grounds of disability, remained central.

What is meant by ‘discrimination’?

Discrimination is defined differently throughout the DDA depending on the field with which one is concerned – practitioners need to take care that the specific requirements which apply in specific fields of provision are considered. So, in employment, one needs to be careful not to just consider the definition of discrimination as set out in s.5 of the DDA 1995 but also how this definition has been developed by the changes introduced by the 2003 Regs. and the DDA 2005.

The DDA did not originally distinguish between direct and indirect discrimination, but sought instead to eradicate less favourable treatment where this could not be justified and ‘level the playing field’ through the requirement to make reasonable adjustments and the encouragement of positive discrimination. Broadly speaking the DDA originally identified discrimination as occurring where an alleged wrongdoer “for a reason which relates to the disabled person’s disability, …treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and he cannot show that the treatment in question is justified.”

In addition any failure to comply with the duty to make reasonable adjustments constituted discrimination, unless it could be justified under the DDA. [s.5 and s.20 of the DDA].

To stand a chance of being justified, the reason for the less favourable treatment or for a failure to comply with the duty to make reasonable adjustments had to be both material to the circumstances of the particular case and substantial.

In addition, any failure to comply with a duty to make reasonable adjustments also constitutes discrimination (s.3A(2)) unless it is possible to demonstrate that differential treatment would have been justifiable under s.3A(3), even if the defendant had complied with the duty to make reasonable adjustments (s3A(6)).

In 2000 the EU directive for equal treatment gave prominence to the need to ensure that direct discrimination within employment was eradicated. The Disability Discrimination Act 1995 (Amendment) Regulations 2003 [the ‘2003 Regulations’] was introduced to ensure that the DDA complied in full with the requirements set out in the EU Directive for equal treatment.

The 2003 Regulations inserted a new s.3(A) into the DDA 1995 amending the definition of disability discrimination in the field of employment so to expressly prohibit direct discrimination (s.3A(4)) which it defined as occurring when “a person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person” (s.3A(5).

The effect of this was to differentiate between direct discrimination which could not now be justified on any ground, and failure to comply with the duty to make reasonable adjustments or disability related discrimination which, if the alleged wrong doer could demonstrate it was based on reasoning material to the circumstances and substantial, could be justified.

The introduction of direct discrimination only applies to the duties owed by employers, local authorities towards its members and to qualification bodies. It does not apply more widely to other categories where discrimination on the basis of disability may occur.

Harassment, victimisation and inducement wrongs

Taken together, the Directive, the 2006 Equality Act and the DDA also prohibit harassment, victimisation and instructing, causing or inducing discrimination.

Positive discrimination

The Directive is very clear that the prohibition of discrimination should be without prejudice to measures intended to prevent or compensate for the disadvantages felt by those suffering from a disability. UK legislation is in line with this requirement, in that the DDA definition of discrimination is clear that only treatment which is less favourable is unlawful.

Who is the comparator?

Discrimination within the DDA arises where a person treats another ‘less favourably than he treats or would treat others to whom that reason does not or would not apply’, so in order to ascertain whether treatment is less favourable as a result of disability it is necessary to apply a comparator.

In Clark v TDG LTD (T/A Novacold) (1999) 2 All ER 977 the Court of Appeal was asked to determine whether the dismissal of an employee who could not work for a year, due to an accident, was discrimination.

The firm had defended their actions as not discriminatory on the basis that they would have dismissed a non-disabled person had they been unable to work for a year. The Court of Appeal had rejected this approach, focusing instead on the ‘reason’ for the less favourable treatment. It held that the reason for the dismissal was the fact that he could not work, and the correct comparator was someone who would be able to work. Since the firm would not have dismissed someone who could perform the functions of the employee and the reason for why the person in question could not perform their functions was due to disability, it held that his dismissal was discrimination.

This approach was more recently rejected by the Lords in Lewisham London Borough Council v Malcolm (2008) UKHL 43. This case considered whether possession proceedings issued against someone with a disability amounted to ‘less favourable treatment’.

Malcolm, a secure tenant of the local authority who suffered from schizophrenia, had applied for the right to exercise the right to buy his flat. Prior to the completion of the process, he sub-let the flat without obtaining the local authority’s consent, so had ceased to be a secure tenant (under s93 Housing Act 1985). On discovering the sub-letting, and without knowledge of his medical condition, the local authority gave notice to quit and initiated possession proceedings; which Malcolm sought to defend on the basis that he sub-let whilst ill, and so to evict him would be in breach of the DDA.

The Lords held that in order for the alleged discriminator to be found to have treated someone less favourably for a ‘reason which relates to the disabled person’s disability’ the complainant would need to demonstrate that their impairment played some motivating part in the alleged discriminator’s actions.

The local authority was unaware of his disability at a time that they initiated proceedings. The reason for their action was because Malcolm had sublet his flat and moved out. The Lords overruled Novacold, as Lord Scott of Foscote explained: “Parliament must surely have intended the comparison … to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not.” The correct comparator would be a secure tenant with no mental illness, who had sublet. Applying the correct comparator, Malcolm had not suffered any differential treatment and there was no discrimination for the DDA.

When is ‘less favourable treatment’ justifiable?

The DDA specifies within each field of protection what the justification for differential treatment may be. However, there is again a common theme, which is added to in the specific areas.

One must be able to establish that one believes that the conditions upon which the justification was based were satisfied and that, objectively, it was reasonable for one to have formed this opinion.

Anyone seeking to rely on a justification must first have taken into account all the circumstances, including any information which is available, any advice which it would be reasonable to seek, and the opinion of the disabled person. In addition, proper consideration must have been given to the obligation to make reasonable adjustments and this duty compiled with in full or, where it is not, a conclusion has been reached that the making of reasonable adjustments would not eliminate the need to treat a person affect by disability less favourably.

Thereafter the alleged discriminator must demonstrate the situation came within one of the specified conditions for permitting less favourable treatment, namely, that:

• the treatment is necessary in order not to endanger the health or safety of any person (including the disabled person)
• the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable
• the treatment is necessary because the provider of services would otherwise be unable to provide the service to members of the public
• the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public
• the difference in the terms on which the service is provided to the disabled person reflects the greater cost to the provider of services in providing the service to the disabled person.

Belinda Schwehr is a specialist in community care law and owner of Care and Health Law

Details

08.Mar.2010

How can councils make economies in their social services provision without falling foul of the law? Nicola Williams outlines how local authorities can stay out of trouble.

The conundrum: maintaining levels of services where social services’ budgets are in the front line of budget cuts.

Where could local authority budgets cuts ultimately lead? We have been deluged with stories of budget cuts, the possible consequences of free personal care and the consequences for our already under-resourced social services departments. If social services take the brunt of cuts to local authority budgets, what is the bottom line in terms of local authorities' responsibilities?

Fair Access to Care - the new Guidance on eligibility criteria

On 25 February the Department of Health published Prioritising Need in the context of 'Putting People First': A whole system approach to eligibility for social care: Guidance on Eligibility for Social Care, England 2010 (the "Guidance").  That document makes specific reference to the earlier CSCI¹ report Cutting the Cake Fairly: CSCI review of Eligibility Criteria for Social Care²,  which found that short term gains in funding for local authorities as a result of raising eligibility criteria were followed by a longer term rise in the numbers of people eligible for social care services. The Guidance warns against authorities raising eligibility criteria and suggests instead that authorities should "... consider adopting a strong preventative approach to help avoid rising levels of need and cost at a later stage".  The Guidance suggests practical methodologies for embedding preventative strategies across the whole of an authority, working in partnership with other local agencies. 

The Guidance also recognises that while authorities can review their eligibility criteria in line with their usual budget cycles, reviews can be brought forward "if there are major or unexpected changes, including those with significant resource implications".  Authorities are repeatedly warned that raising the threshold of the eligibility criteria without a parallel investment in preventative services may lead to increasing demand for services in the longer term. 

Duty to meet eligible needs

The Guidance goes on to provide detailed information on the assessment process for individuals who appear to be in need of services.  Once an individual's needs have been assessed, the local authority cannot take decisions about whether to meet eligible needs simply on the basis of resources available (R v Gloucestershire County Council, ex parte Mahfood³).  The Guidance reinforces the finding in the Mahfood case, namely that where eligible needs have been assessed, a local authority is under a duty to meet those needs.  There is also a requirement that individuals with the same or similar needs should receive similar packages of care.  While it highlights that there may be flexibility around how individuals' needs can be met, the Guidance does not have a message for local authorities as to how to square the circle, that is - static or increasing needs of the local population, particularly with the needs of an aging "baby boomer" population around the corner, and the significant cuts to public services which seem inevitable.

The judgment of what was then the House of Lords in the case of R v Gloucestershire County Council ex parte Barry⁴ provided a possible answer to this some time ago.  It was deemed permissible to increase the levels of an authority’s eligibility criteria, provided that individuals were then properly reassessed for care provision against the new eligibility criteria.  That approach has been criticised and distinguished in subsequent cases⁵, and it is important to bear in mind that ex parte Barry was decided prior to the Human Rights Act coming into force.

The Human Rights Act 1998

Local authorities are increasingly aware of the potential for the rights enshrined into law by the Human Rights Act 1998 (the "HRA") to impact upon their policies and practices.  The HRA gave direct effect in British Courts to certain Articles of the European Convention of Human Rights as set out Schedule 1 to the HRA.

Article 2 and Article 3 of the European Convention of Human Rights

Those Articles of greatest relevance to social services departments are Article 2, the Right to Life, and Article 3, the Prohibition of Torture.

Article 2 is an absolute right, and places an obligation on all bodies fulfilling "functions of a public nature" (as set out in section 6(3) of the HRA) to protect the right to life. This has previously been raised in, for example, cases challenging the decision of a local authority to close a care home (R (Wilson) v Coventry City Council⁶), where it was unsuccessfully argued that a potential increase in mortality of care home residents, who were forced to move when their current home closed, amounted to a breach of article 2. 

Article 3, as well as prohibiting torture, also protects against inhuman or degrading treatment or punishment.  It too is an absolute right, not qualified by reference to the conflicting needs of a democratic society, although it is subject to a minimum threshold test.  By virtue of Article 3, local authorities are under a positive obligation to take reasonable measures to prevent the violation of individuals' rights under Article 3.  The case of Z and Others v UK⁷ (which was heard before the European Court of Human Rights in Strasbourg), found that the local authority's failure to protect a family of four children who were living in squalid conditions, and who were known to the authority over a four and a half year period, was in breach of its duties under Article 3. 

The case of  Z and Others also found that there was a failure to provide an adequate remedy for the breach of the children's rights, which was itself a breach of Article 13. An application for damages had been heard prior to the HRA coming into force, and had been struck out by the Court.  Claims for breaches of the HRA can now be brought through the domestic Courts and the remedy available for such claims is damages. 

Failure to provide services

The capacity to bring claims under the HRA for service failures is limited   - for example, Article 3 was raised again in the case of R (on the application of Haggerty and others) v St Helens Council⁸, in the context of the local authority's decision not to renew a contract with a nursing home which was likely to result in the closure of the home.  The claim alleged breaches of Articles 2, 3 and 8 (right to private and family life),  which failed because it was found that the disruption which would be caused to the residents of the care home, all of whom had senile dementia, would not reach a sufficiently high threshold to trigger the protection of any of these three rights

Although successful claims for damages under the HRA are rare, the setting of eligibility criteria may disguise failures to meet eligible needs and local authorities need to be conscious that even where needs are assessed as falling below the eligibility criteria for a particular authority, a claim under Article 3 may still be available if the circumstances are sufficiently extreme.  The legal fees incurred and any damages payouts which do ensue are likely to have an incremental effect on the social services budget crisis.

Postscript - the limits of the care which local authorities can provide

Despite the concern to meet their obligations under the HRA, local authorities will also want to ensure the care they are providing does not go beyond the limits of what an authority can lawfully provide.  

Local Authority lawyers will doubtless be aware of the judgments in the Coughlan⁹ and Grogan¹⁰ cases which defined the limits of the care which local authorities can lawfully provide.  Despite the terms of the judgments in these cases, however, and the publicity around individuals’ attempts to reclaim funds expended on personal care in the past, we are aware of significant disputes between local authorities and the NHS as to the outcomes of assessments under The National Framework for NHS-funded continuing care and NHS- funded nursing care¹¹.

These types of “costs shunting” issues, where the funding responsibility for whole groups of individuals with a high level of care requirements can end up in judicial review proceedings before the High Court, are likely to increase as local authorities become less willing to reach a compromise which will impact further on their social services budgets. Similarly, we expect to see a rise in claims in restitution, seeking “back-payments” where the Courts decide that a party does not have legal responsibility for care it has been funding in the past.

Nicola Williams is a partner in Eversheds LLP’s Litigation and Dispute Resolution Group

E-mail:  This email address is being protected from spambots. You need JavaScript enabled to view it.

This briefing is correct as at 5 March 2010.  It is intended as general guidance and is not a substitute for detailed advice in specific circumstances.

Footnotes:

¹ The Care Quality Commission took over CSCI’s responsibilities from April 2009

² which was published in October 2008

³ 1997 1 CCLR 7.  See also paragraph 124, footnote 60 of the Guidance which refers to this case.

⁴ [1996] 4 All ER 421

⁵ See, for example, R v Wigan MBC ex parte Tammadge (1998) 1CCLR 581

⁶ [2008] EWHC 2300

⁷ (2001) 10 BHRC 384

⁸ [2003] EWHC 803

⁹ R v North and East Devon Health Authority ex parte Coughlan [2000] WLR 622

¹⁰ R (Grogan) v Bexley NHS Care Trust and others [2006] EWHC 44 (Admin)

¹¹ July 2009

Details

08.Mar.2010

Birmingham City Council is considering entering into a legal agreement with the city’s three NHS Primary Care Trusts that would see them pool their £300m-plus learning disability and mental health services budget.

The council’s Cabinet will today (8 March) consider a report on entering into a s.75 agreement under the Health Act 2006. The four parties currently commission services separately, often from the same providers.

Under the plan Birmingham’s Adults and Communities Directorate will lead on commissioning of learning disability services, while NHS Birmingham East and North will head up the commissioning of mental health services.

In a statement, the council said the arrangements would help in the move towards greater personalisation of care, and in a drive to develop more supported living and home based support.

The four bodies hope to reduce the current spend on residential care in the learning disability field from 55% to 40% over the next three years.

Councillor Sue Anderson, Birmingham’s cabinet member for Adults and Communities, said the s.75 agreement was “a step-change in partnership working in Birmingham”.

She added: “We will make the public pound stretch further by working together across agencies, as well as helping people with disabilities and mental health illness to take more control of their own lives.

“Breaking down barriers between organisations means we eliminate duplication and bureaucracy, and can re-direct resources to the vital frontline services which help people with learning disabilities and mental ill health live happier and more fulfilled lives in Birmingham.”

Details

24.Feb.2010

A parent caring for a migrant worker's child who is in education in the UK has a right of residence, the European Court of Justice has ruled.

Ruling in London Borough of Harrow v Nimco Hassan Ibrahim (case C-310/08) and Maria Texeira v London Borough of Lambeth (case C-480/08), the ECJ also said that this right of residence is not conditional on the parent having sufficient resources not to become a burden on the member state’s benefits system.

In the Ibrahim case, Ms Ibrahim, a Somali national, arrived in the UK in 2003 to join her husband, a Danish citizen who was working legally in the UK. He then claimed incapacity benefit between June 2003 and March 2004, when he was declared fit to work. He then left the UK and the couple separated.

Ms Ibrahim was never self-sufficient and depends entirely on benefits. In January 2007 she applied for housing assistance for herself and her four children. That application was rejected on the basis that only persons with a right of residence under EU law could make such an application, and that neither Ms Ibrahim nor her husband were resident in the UK under EU law. Ms Ibrahim then appealed this decision.

In Texeira, Ms Texeira, a Portuguese national, arrived in the UK in 1989 with her husband, also a Portuguese national, and worked there until 1991. Their daughter was born in the UK. The couple were subsequently divorced, but both remained in the UK.

From 1991 to 2005, Ms Texeira worked intermittently while her daughter went to school. In 2007, she applied for housing benefit. Her application was rejected on the ground that she did not have a right of residence in the UK, since she was not in work and was not therefore self-sufficient. Ms Texeira challenged the decision on the basis that she had a right of residence because of her daughter’s continuing education.

In its judgements, the ECJ pointed out that Article 12 of the Community regulation on freedom of movement for workers allows the child of a migrant worker to have an independent right of residence in connection with the right of access to education in the host member state. This right applies even if the parent working in the state is no longer part of the family or if the parent caring for the child does not have their own individual claim to live in the UK.

The ECJ also found that “the right of residence of the parent who is the primary carer of a child of a migrant worker who is in education is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of the host member state”.

The court also said there was no age limit for rights conferred on a child by Article 12. “The right of access to education and the child’s associated right of residence continue until the child has completed his or her education,” it found.

The parent’s right of residence could therefore continue after a child reaches the age of majority (18 in the case of the UK) where “the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education”.

Details

23.Feb.2010

The Care Quality Commission this week launched a review of health care in care homes that is in part designed to improve the commissioning and procurement practice of local authorities and Primary Care Trusts.

The Commission said it wanted to ensure that residents “have equal and appropriate access to personalised health services that uphold their human rights”.

The other objectives of the review are to improve choice, access to health care and quality of health care services for people living in care homes, and raise issues at a national level about policy.

The CQC said it would look at how:

• Care is planned and assessed
• Health is promoted
• People are referred to NHS services
• Health services charge for treatment
• Consent issues are addressed, and
• Healthcare treatment is delivered in partnership with other services.

Its investigation will look, amongst other things, at the role of PCTs and councils as commissioners.

The two-stage review will see the Commission first identify the areas of the country most at risk of poor performance using existing national data.

The CQC will then assess the 10% of areas most at risk of poor performance, gathering evidence from PCTs, councils and GPs. It will visit a sample of care homes before publishing local assessment reports and a national report.

Details

10.Feb.2010

The Deprivation of Liberty Safeguards under the Mental Capacity Act 2005 have been in place for almost a year. In the first of a two-part series, Rhys Hadden, Hilton Harrop-Griffiths and Jonathan Cowen analyse the three leading judgements since the new regime came into force and predict a steep learning curve.

Deprivation of Liberty Safeguards (DOLS) have had statutory effect since 1 April 2009 and since then have featured in three reported cases, each of which is of interest to local authorities, whether in their role as supervisory bodies, managing authorities or assessors for Primary Care Trusts.

Background

The need for statutory safeguards stems from the decision of the European Court of Human Rights in 2004 in HL v UK, which concerned the detention (but not under the Mental Health Act 1983 (MHA)) of a compliant mentally incapacitated man in Bournewood hospital.

His former carers challenged the decision to detain in the domestic courts and were met with the defence of necessity, a common law doctrine whose use in this case was ultimately approved by the House of Lords. Lord Steyn, however, identified what has come to be known as the Bournewood Gap when he observed that necessity was a useful concept but it did not involve any of the safeguards of the MHA and that neither judicial review nor habeas corpus was sufficient protection against misjudgements and professional lapses in such cases.

The ECtHR’s approach was that HL had been deprived of his liberty for the purposes of Article 5 of the European Convention on Human Rights and that only statutory safeguards would satisfy its requirement that such deprivation had to be in accordance with a procedure prescribed by law.

Closing the gap

The DOLS themselves are set out in the 188 paragraphs of Schedule A1 to the MCA and are extremely complex.

They relate only to adults detained in a hospital or care home (as in section 3 of the Care Standards Act 2000 (‘CSA’)) for the purpose of being given care or treatment, who lack capacity as to whether they should be accommodated there and in circumstances which amount to a deprivation of their liberty.

In essence they enable a ‘supervisory body’, following a series of assessments (including as to eligibility – see below), to authorise a ‘managing authority’ to deprive such a person of his liberty if this is in his best interests in order to prevent harm to him, subject to a review procedure and recourse, if necessary, to the Court of Protection, under section 21A of the MCA.

In the case of a care home, the supervisory body is the local authority for the area in which the ‘patient’ is ordinarily resident or, if he does not have a settled residence, the local authority for the area in which he is present and the managing authority is the person registered under the CSA in respect of it.

The place for these safeguards within the MCA is established by section 4A, which provides that the Act does not authorise anyone to deprive another of his liberty unless:
it gives effect to a decision of the Court of Protection made by a ‘welfare order’ under section 16(2)(a) (i.e. that this is in his best interests) or
it is authorised by Schedule A1, or
it is authorised under section 4B, which concerns life-sustaining treatment.

As regards the making of such an order, section 16A provides that this cannot include a deprivation provision if its subject is ineligible to be deprived of his liberty by the Act by reason of Schedule 1A – nor can this be authorised under Schedule A1.

The purpose of this schedule is in effect to assert the primacy of the MHA where the person concerned is subject to a hospital treatment or community treatment or guardianship regime or, if not so subject, he is ‘within the scope of the MHA’ (i.e. he could be detained under section 2 or 3 of this Act) and where he could otherwise be susceptible to a deprivation under the MCA.  Although it is far shorter than A1 it more than matches it for complexity, as illustrated below.

The cases

On 17 July Roderic Wood J gave judgment in W PCT and TB v. V et al [2009] EWHC 1737 (Fam), in which the issue was whether in respect of a deprivation at a care home TB, who had a chronic delusional disorder, was ineligible for the purposes of the MCA.  She was not subject to a mental health regime but the judge proceeded on the basis she came within the scope of the MHA, without, however, any analysis of whether she did.

In such a case the next requirement (the first of three conditions set out in paragraph 5 of Schedule 1A) is that “the relevant instrument authorises P to be a mental health patient.”  Where the issue is whether the Court of Protection can sanction deprivation the instrument is an order under section 16(2)(a) and where the issue is whether Schedule A1 can sanction this it is a standard authorisation.  Where there is no existing instrument to consider the focus is on, respectively, an order as it would be if a provision for deprivation were included in it and an authorisation as it would be if it were given.

A mental health patient is a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder within the meaning of the MHA (but disregarding any exclusion for persons with learning disability). Since a care home was involved rather than a hospital (in effect within the meaning set out in section 275 of the NHS Act 2006), Wood J was able to find that the Court could make a welfare order that provided for her deprivation of liberty there or this could be authorised under Schedule A1.

On 20 November Charles J gave judgment in GJ v. The Foundation Trust et al [2009] EWHC 2972 (Fam). Again, this concerned ineligibility, the case having been brought under section 21A of the MCA in respect of two consecutive standard authorisations for the purpose of GJ (who had been detained under section 3 of the MHA until a month before the first of these) being given treatment for his diabetes in a hospital. The judge found that had he not needed this treatment he would not have again have been detained under the MHA, so that he did not come within its scope for the purposes of Schedule 1A. In any event, the relevant instrument did not authorise him to be a mental health patient.

The particular value of this judgment is that Charles J closely analysed many of the intricacies involved in ineligibility issues, as summarised (albeit at some length) in paragraph 132.

On 11 December Munby J gave judgment in Salford CC v. BJ [2009] EWHC 3310 (Fam). This followed a review of a deprivation provision he had made the year before, concerning a placement in supported living accommodation, where BJ was a tenant and where he received care. Schedule A1 did not apply because this was not a care home and so, as before 1 April, only the Court could sanction a deprivation. The judge did, however, take into account the review procedure set out in the schedule in determining the appropriate nature, intensity and frequency of review to be undertaken by the local authority concerned and the Court.

The future

Whenever there is a significant statutory change it takes time to bed in, to be fully understood by the judges, as well as the lawyers involved, as well as, here, the social work professionals in the front-line. Given the complexity of the DOLS themselves and when they are to be used or not these cases are likely to be only the start of a long learning process.  

Rhys Hadden, Hilton Harrop-Griffiths and Jonathan Cowen are barristers at Field Court Chambers

www.fieldcourt.co.uk

In part two, to be published later this month, the authors will look at aspects of practice and procedure in applications for welfare orders.