Thursday, 18 September 2008

No need for the need for a father?


Fertility services licensed under the Human Fertilisation and Embryology Act 1990 (HFEA) must tread carefully. When, for example, they decide whether treatment may be provided to a patient, they must take account of the welfare of any child that might be born as a result and, in particular, consider “the need of that child for a father”. (HFEA, section 13(5))

The Government wishes to introduce a new version of the HFEA and has proposed, amongst other things, that services be required to take account not of the need for a father, but simply of the need “for supportive parenting”. (Human Fertilisation and Embryology Bill, clause 14(2)(b))

It is believed that one effect of this change would be to establish that women may not be refused fertility treatment solely because they are single or in a same-sex relationship. Parliament itself has said that the ‘need for a father’ requirement “was clearly intended to restrict the provision of IVF to lesbian and single women.” (House of Commons Science and Technology Committee, 2005, Human Reproductive Technologies and the Law, HC 7-I, paragraph 99) (There is, however, evidence that it has not had that effect. See: ibid, paragraph 100.)

But for some women, it is already unlawful to exclude them from fertility treatment (and many other health care services). The belief that it might still be lawful to deny such treatment to a woman solely because she is in a same-sex relationship fails to take account of The Equality Act (Sexual Orientation) Regulations 2007. (SI 2007 No 1263)

As their title suggests, these regulations were made under the Equality Act 2006, and they came into force on 30 April 2007. Amongst other things, they deal with ‘discrimination’, which might be direct - using someone’s sexual orientation as a reason for treating her less favourably than others (regulation 3(1)); or indirect - applying to her a condition that would not be applied to others (regulation 3(3)).

Although one of the regulations prohibits such discrimination in the provision of goods, facilities and services (regulation 4), it does not apply to public bodies (regulation 4(3)(a)) and will not, therefore, cover a NHS clinic or a PCT. Another regulation, however, does extend that far.

Regulation 8 of the Sexual Orientation Regulations is very clear. It says, “It is unlawful for a public authority exercising a function [of a public nature] to do any act which constitutes discrimination.” (Regulation 8(1) & (2)(b)) (It might be that an act will not be required, and that even a policy that excluded lesbians from treatment would be unlawful. See: regulation 9.)

It is likely, therefore, that in the case of a woman in a same-sex relationship, a NHS body that refused her treatment on that ground alone would breach the Sexual Orientation Regulations. Given that not just direct, but also indirect discrimination is unlawful, such might even be the case if, before a final decision were made, a clinic or PCT applied the ‘need for a father test’ (or simply had a policy of doing so).

Single women might still have something to gain from the change the Government proposes to make. As far as lesbians are concerned, however, their liberties have already been secured: there is no longer any place for the need for a father.

Update: subsequent events suggest the argument set above has some merit. See here. (Update added 1 March 2009.)

The Deprivation of Liberty Safeguards might not have helped the original Bournewood patient

Deprived of liberty? Detained?

Every local authority, and every PCT too, will soon have new responsibilities for incapable people. But there are real questions about how far those responsibilities extend and just whom they cover.

The Deprivation of Liberty Safeguards (DoLS) will come into force in April 2009. They will be found in Schedule A1 to the Mental Capacity Act 2005 (which was inserted by the Mental Health Act 2007).

The DoLS are the Government’s response to the Bournewood case, in which, in October 2004, the European Court of Human Rights (ECtHR) held that it would breach the ECHR for the common law doctrine of necessity to be used to deprive an incapable person of his liberty. (HL v United Kingdom, Application no 45508/99, Decision of 5 October 2004) The court said the common law was too vague and had too few safeguards to comply with Articles 5(1) and (4). For years, it was common law necessity that provided the legal basis for admitting incapable people to hospital and confining them there. Following Bournewood, therefore, a new framework had to be found to replace it. That is the purpose of the DoLS.

New safeguards
The Mental Capacity Act 2005 came fully into force on 1 October 2007. It provides a statutory basis for the care and treatment given to incapable people. At the moment, it may not be used to deprive such people of liberty (MCA, s 6(5)), but the DoLS will change that.

The DoLS will apply to an incapable patient accommodated in a hospital or care home if he is “detained [there] […] in circumstances which amount to deprivation of liberty”. (MCA, Schedule A1, paragraphs 1(2) & 15) Typically, they will cover patients with siginificant learning disabilities or older people who have dementia. In the case of any such patient, it will be up to the relevant local authority or PCT – as a newly-minted ‘Supervisory body’ under the DoLS – to decide whether he should continue to be so detained. This onerous responsibility might be made more so by confusion in the wording of the safeguards themselves.

It seems clear that in order for the DoLS to cover his case, an incapable person will have to be both deprived of liberty and detained. Regrettably, there is no official explanation for this distinction: the Code of Practice to the DoLS, for example, doesn’t even mention it. (Ministry of Justice, 2008, Mental Capacity Act 2005: Deprivation of Liberty Safeguards – Code of Practice to supplement the Main Mental Capacity Act 2005 Code of Practice). The case law, however, is somewhat clearer.

Detention or deprivation of liberty
At first, the Bournewood case involved a patient, Mr L, an application for judicial review of his detention and a writ of habeas corpus, and a claim for damages for false imprisonment. It was accepted that what must first be decided was whether he had been detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 1 All ER 634)

What the common law knows as detention is not the same as what the ECHR knows as deprivation of liberty. The ECtHR reached this conclusion when it considered the Bournewood case, and, from a domestic perspective, it has been enunciated most recently in the Court of Appeal decision concerning the Oxford Circus demonstrators. (Austin and Saxby v Metropolitan Police Commissioner [2007] EWCA Civ 989) In the latter case, the trial judge found “that it is possible for there to be a deprivation of liberty without false imprisonment and vice versa.” (Ibid, per Sir Anthony Clarke, MR at [88])

This must be so, for in Bournewood, the ECtHR felt able to find that Mr L had been deprived of his liberty even though the House of Lords had ruled that he was not detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L (1998) 3 All ER 289) In Austin and Saxby, meanwile, the Court of Appeal held that although the claimants were not deprived of their liberty in the Article 5 sense, they were imprisoned (even if not falsely). (Ibid, at [105] and [12]) But this essential difference might prove harmful to the DoLS.

If detention is not the same as deprivation of liberty, and if one might exist without the other, it is conceivable that an incapable patient would be found to be labouring under the former but not the latter, and that he would therefore fall outside the DoLS, even though he fell firmly within the Strasbourg judgment in Bournewood.

Consider Mr L himself. We know, because the ECtHR told us, that he was deprived of liberty. But of the nine domestic judges that considered the case, only a bare majority felt he had been detained; and their Lordships, of course, went the other way. So, is it possible that the new Bournewood safeguards wouldn’t even have applied to the original Bournewood patient?

There is a already a duty to respond to the coroner

HM Assistant Deputy Coroner for Inner West London

As yet, we don’t have a new Coroners Act. What we do have is the promise of a Bill and some idea of what it might contain. (Ministry of Justice, 2008a, Coroners Bill – Changes made resulting from consultation) Amongst other things, there will a duty to respond to a coroner’s concerns. In the meantime, the existing rules have been strengthened to much the same effect.

Eventual powers
According to the document in which the Government makes its promise, a coroner who believes that action should be taken to prevent the recurrence of fatalities similar to one he or she has investigated will be able to report the matter to anyone with the power to take such action. (Ministry of Justice, 2008a, op cit, page 3) This reflects proposals in the draft Coroners Bill and support from within Parliament itself. (Secretary of State for Constitutional Affairs, 2006, Draft Coroners Bill, Cm 6849, clause 12(2); House of Commons Constitutional Affairs Committee, 2006, Reform of the coroners’ system and death certification, Eighth Report of Session 2005-06, HC 902, paragraphs 201-211)

Although this resembles rule 43 of the Coroners Rules 1984, it differs from that provision because it would [1] both allow a coroner to report the matter to the new Chief Coroner and compel any organisation that received such a report to respond; and [2] enable the Chief Coroner to monitor reports and responses, and to summarise them in his or her annual report to the Lord Chancellor. (Ministry of Justice, 2008a, op cit, page 3) In fact, the difference is not as great as it might have been. That is because rule 43 has recently been amended, so that reports may be sent, and responses required, even before any new Act comes into force.

Interim powers

The amendments, which were made by The Coroners (Amendment) Rules 2008, came into effect on 17 July 2008. (SI 2008 No 1652)

Making a report
Where, on the basis of evidence heard at an inquest, he or she believes action should be taken, the amendment allows a coroner to make a report to prevent not just similar fatalities, but “other deaths”. (Rule 43(1)(b)) This represents a significant change, because, we are told, it “will allow the coroner to report issues that may be peripheral to the current case but nevertheless prevent death(s) in the future.” (Ministry of Justice, 2008b, Guidance for coroners on changes to Rule 43: Coroner reports to prevent future deaths, paragraphs 2.1 & 2.2) This change should not, however, lengthen inquests or broaden their scope. (Ibid, paragraph 2.4)

The amended rule and the guidance upon it each say, somewhat confusingly, both that a coroner who intends to make a rule 43 report must announce that intention before the end of the inquest and that a failure to do so will not prevent such a report being made. (Rule 43(3); Ministry of Justice, 2008b, op cit, paragraph 2.5) One wonders what the word ‘must’ is intended to mean here.

The content of a report
The amended rule does not say what information must be included in any new-style report, for this will be in the discretion of the coroner and depend upon the circumstances of each case. Coroners should, however, tell those to whom they send a report that a response must be provided within 56 days, and that it might be released and published. (Ministry of Justice, 2008b, op cit, paragraph 2.7)

Sharing a report
Subject to any representations (as to which see below), a rule 43 report must be copied to anyone whom the coroner has recognised as a properly interested person and to the Lord Chancellor, and may be sent to “any person who the coroner believes may find it useful or of interest”. (Rule 43(4)) This last is a very wide provision. It may include “regulatory bodies or organisations with an interest in the subject mater of the report”. (Ministry of Justice, 2008b, op cit, paragraph 3.4)

Having received a rule 43 report, the Lord Chancellor may publish it and/or copy it “to any person [whom he] believes may find it useful or of interest” (provided that person hasn’t already received the report from the coroner). (Rule 43(5)(b)) The Lord Chancellor has been given this power so that “issues which were subject to reports in one coroner district which may have relevance to other coroner districts [may be] identified and disseminated nationally”. This should, in turn, allow “emerging trends to be identified and lessons that could be applied at a national level to be highlighted.” (Ministry of Justice, 2008b, op cit, paragraphs 1.3-1.7)

Responding to a report
No one that receives a rule 43 report is obliged to act upon it. They will, however, have to respond to it, and ordinarily, to do so within 56 days. The response must set out any action that has been taken or proposed, and if there is no such action, it must explain why. (Rule 43A(1))

A coroner may extend the 56-day period for a response, either before or after it has expired (Rule 43B) and for whatever further period he or she considers appropriate. The guidance says that an extension might be appropriate where, for example, the report: [1] “is sent to the incorrect person or division in an organisation, especially a large organisation[,] and is not promptly received”; or [2] “requires significant policy work to be undertaken before a response may be sent”. (Ministry of Justice, 2008b, op cit, paragraph 4.6)

Although the amendment does not impose a sanction, any failure to respond to a rule 43 letter should be followed up by the coroner, and “Where a response remains outstanding after reasonable attempts, then the coroner may inform the Lord Chancellor.” If there is a continuing failure to respond, the latter may mention it in any document he publishes about rule 43 reports. (Ibid, paragraph 4.8)

Making representations
An organisation that does not wish its rule 43 response to be shared with others may make representations to the coroner in that regard. This might be because: [1] “the response contains confidential or classified information”; [2] “the release of the response might have a prejudicial effect on ongoing or upcoming legal proceedings”; or [3] “regulatory enforcement action is being carried out under confidentiality rules.” (Ibid, paragraph 5.7)

Any representations must be in writing, (Rule 43A(4)) and it will be up to the coroner to decide whether to accept them and, if so, how to respond. (Ministry of Justice, 2008b, op cit, paragraph 5.6)

Even if he or she accedes to any representations, a coroner must still prepare a summary of the response for release and publication. (Rule 43A(6) & (7)) It is this summary that will be copied to interested parties and might be shared with others. Although the Lord Chancellor may not overrule a coroner’s decision in this regard, he must be sent not only the summary, but also the original rule 43 report. (Ministry of Justice, 2008b, op cit, paragraphs 5.9 & 5.10) He may only, however, publish the summary. (Rule 43A(3)(a) & (7); Ministry of Justice, 2008b, op cit, paragraph 6.2)

Although, in an appropriate case, the coroner must be told what is to be done to prevent further deaths, he cannot require a particular course of action to be taken. Rule 43 has certainly been strengthened, but the obligations it imposes need not be difficult to meet.

Monday, 1 September 2008

Will the High Court help safeguard vulnerable adults?

Although the Mental Capacity Act 2005 (MCA) can be used to protect people who are vulnerable because they lack capacity to make a decision, it offers no protection to people who, though undoubtedly vulnerable, still retain their capacity. Such people will not find themselves within the embrace of the new Court of Protection, but a recent case suggests that the High Court might now be willing to step into the breach.

The relatively revent case of The City of Sunderland v PS & CA [2007] EWHC (Fam) 623 concerned an 82-year-old woman and whether the ‘inherent jurisdiction’ of the High Court could be used to move her into residential care against her daughter’s wishes. The inherent jurisdiction has long been used by the High Court to (as it sees it) protect incapable people from harm. It is what has enabled the court to declare that it would be lawful for an incapable person to undergo a medical procedure or be prevented from seeing a relative. (See, for example: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re MB (Medical Treatment) [1997] 2 FLR 426; In re F (Adult: Court’s Jurisdiction) [2000] 1 Fam 38.)

The PS case came before the Honourable Mr Justice Munby, who has considerable experience of cases involving incapable people. For present purposes, there were three significant aspects of his judgment. First, Munby J confirmed the inherent jurisdiction of the High Court. Quoting from one of his own earlier judgments, he said: “It is now clear … that the [High] Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established … jurisdictions in relation to children. The court exercises a ‘protective jurisdiction’ in relation to vulnerable adults just as it does in relation to wards of court. [The] court can regulate everything that conduces to the incompetent adult’s welfare and happiness” (at [13]; emphasis added). (See, for example: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Here, the terms ‘incompetent adult’ and ‘vulnerable adult’ seem to be used to connote the same thing.

Secondly, Munby J said: “Consistently with this view of the jurisdiction … there is no doubt that the [High] Court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests” (at [13]; emphasis added). Thirdly, Munby J said that the inherent jurisdiction would even permit the court to order a person’s detention. It is, however, the range of people he thought might be subject to such an order that is of most interest for present purposes. He said: “It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has the power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit” (at [16]; emphasis added).

These extracts from the judgment of Munby J are slightly odd, because he also cited several passages that say no more than that the inherent jurisdiction is available in the case of incapable people. For example, he cited his own judgment as follows: “It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case” (at [13]; emphasis added). (See: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Munby J also cited Dame Elizabeth Butler-Sloss, who had said of the inherent jurisdiction: “It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue … to use the common law as the great safety net to fill gaps where it is clearly necessary to do so” (at [14]; emphasis added). (See: Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC (Fam) 2746.)

It is not clear precisely what Munby J means by a ‘vulnerable’ person. What the Government means by that term is, however, clear. In its No Secrets guidance, it envisages a person who is or may be, inter alia: [1] in need of community care services by reason of mental or other disability, age or illness; and [2] unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation. (Home Office and Department of Health, 2000, No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, paragraph 2.3.) In fact, this test was imported from the Government’s 1997 Green Paper, and, even more remotely, from the Law Commission’s own report on mental incapacity. (Lord Chancellor’s Department, 1997, Who Decides? Making decisions on behalf of mentally incapacitated adults, Cm 3803, paragraph 8.7; Law Commission, 1995, Report on Mental Incapacity, Law Com no 231, paragraph 9.6.)

We don't know whether Munby J’s definition is the same as the one in No Secrets. It seems abundantly clear, however, that he does not regard vulnerability as the same as incapacity, and therefore: [1] that vulnerable people will not fall within MCA 2005 just because they are vulnerable; but [2] that vulnerable people will enjoy the protection of the High Court via the inherent jurisdiction, even though, in the case of incapable people, that protection now falls to be provided under MCA 2005 and exclusively by the Court of Protection.

This state-of-affairs might, however, be somewhat problematic. The Law Commission took pains to stress that measures that might be used to safeguard incapable people should only be used with consent in the case of vulnerable people that retained capacity. (Law Commission, 1995, op cit, para 9.12.)

The possibility that the High Court might offer a remedy to vulnerable people who remain capable – and, indeed, that the Mental Capacity Act might be used to protect those who are both vulnerable and incapable – is considered in more detail in a chapter I have written for a new book. That book, entitled Good Practice in the Law and Safeguarding Adults, is edited by Jacki Pritchard and published by Jessica Kingsley Publishers. It also covers such issues as adult protection practice and procedures; crime and vulnerable adults; financial abuse and the question of capacity; the role of CSCI; and confidentiality and information sharing. More information about the book may be found here.