Tuesday, 28 July 2009

Did I mention ...

The second edition of my book, The Nearest Relative Handbook, is now available.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

This is an excellent reference book that could be used by all members of integrated community mental health teams in England and Wales - Practice: Social Work in Action

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook is published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here

Monday, 20 July 2009

It’s not just about the cost of care

The government has published its proposals for the future of adult care in England. Not surprisingly, a great deal of attention has been paid to the cost of those proposals, and to who should meet it. There are, however, other questions that are just as important.

The government says the system for adult care should be fair, simple and affordable, and that it will therefore need to be underpinned by national rights and entitlements. Nowhere, however, does it say what those rights will be or even what they might look like.

There is no doubt that even now, the legal framework for adult care is old-fashioned, forbiddingly complex and in need of review: the Law Commission has just said so and change now seems highly likely. The new care proposals will only compound the problem.

It seems that under what the government has dubbed the National Care Service (NCS):

* There will be a fully joined-up service between the NCS and the NHS.

* There will also be a single, national assessment process, with people who have gained entitlements in one area being able to transfer them to another.

* The state will meet a fixed proportion of each person’s care costs and any additional costs will be met by social or private insurance.

* An independent body will be created, to advise on quality and best value in adult care services.

* People will be able to continue living in their own homes, if that is what they want.

It remains to be seen whether these aspirations are widely shared, but if they are to be achieved, it will surely only be through legislation.

The shape of any new legislation will be crucial and will have to be debated very thoroughly. It would be unfortunate, however, if the messages from that debate were drowned out by arguments about pounds, shillings and pence.

The government's proposals are contained in a green paper, which is available here.

Corporate manslaughter in prisons and police stations: the new offence is only months away

© Jurgen Chill

The government says it still intends to extend a new manslaughter offence to prisons, police stations and mental health hospitals, and to do so by April 2011.

The offence is part of the Corporate Manslaughter and Corporate Homicide Act 2007. It could apply where a person dies because an organisation – an employer, for example, or a service provider - breached its duty of care.

Though the Act itself came into effect in April 2008, the government exempted places of detention, because it said they might need as much as five years to prepare. They aren’t going to get that.

In a new report to Parliament, the Ministry of Justice reveals there’s a lot to be done in the criminal justice system.

* Prison capacity will rise to 96,000 and many existing cells will be improved.

* The recent Bradley Report, on how the criminal justice system treats people with mental disorder or a learning disability, will be implemented in full.

* The new Ministerial Board on Deaths in Custody will get into its swing.

* More work will be done on the risks presented by transferring prisoners.

* The Person Escort Record will be introduced nationwide and the Police National Computer made available in more prisons.

* New IT will make it easier to share information across the youth justice system.

* Proper arrangements will be made for NHS primary care trusts to take responsibility for healthcare in police custody suites.

* There will be greater integration of prison and community drug treatment services (the budget for which will be increased more than three-fold).

* Policy custody staff will continue to receive expert training.

* Prison staff will be taught about the system for managing prisoners identified as being at risk of suicide or self-harm, and all policies will be reviewed.

* The government will implement the recommendations of a recent review of the use of restraint on juveniles.

Not all of this work will have to be completed in the next few months, of course. A great deal will have to change, however, if places of detention and those responsible for them are to be ready to meet the challenge of the new Act. The cost, should they fail, is likely to be high.

The new report is available here.

Some coroners seem more concerned than others


Although coroners now have wider powers, it seems the use of those powers varies widely.

Coroners often hear cases in which death might have been avoided. They have long had the power to report those cases to the appropriate authority, and since July 2008, they have been entitled to demand a response. According to new figures, however, some coroners are doing that far less frequently than others.

Now, any response must be sent to the coroner within 56 days and the Lord Chancellor may publish responses received. The first summary of those responses shows that:

* By the end of March, reports had been issued in 207 cases, and in 57 of the 115 coronial jurisdictions. (This means that 58 coroners made no reports.)

* Just five coroners accounted for nearly a third of all those cases. In fact, most of them – 18 – came before the South Manchester coroner (and 12 came before the City of Manchester Coroner). The Cardiff and South Staffordshire coroners each made reports in 15 cases.

* More than a quarter of cases in which reports were issued concerned hospital deaths, but there were also significant numbers of reports concerning mental health-related deaths and deaths in the community.

* Nearly a fifth of reports concerned deaths on the roads, and about a tenth revealed health and safety concerns.

These are, of course, early days, and, as the Lord Chancellor’s summary itself explains, what a coroner does is determined by the cases he or she hears. There are, nevertheless, striking disparities in the extent to which coroners’ report-powers are now being used.

The summary may be found here.

Tuesday, 7 July 2009

There’s a difference between wanting to kill yourself and simply wanting to harm yourself … and the law recognises it

Just because you cut yourself, or burn yourself or bruise yourself, that doesn’t mean you want to die. Practitioners have long understood the distinction and now, it seems judges understand it too.

Mr P has a long history of self-harm: he has placed foreign objects in his mouth and used them to open up old wounds, he has exposed tendons in his feet and hands, and he has inserted matchsticks and glass into his penis. For 15 months, he was detained in a young offenders’ institution, and when he came out, he asked for an inquiry to be held concerning the care he received there.

Mr P’s request was turned down by the Justice Secretary, and that decision has been upheld by the High Court and, yesterday, the Court of Appeal. One reason is his own self-harming behaviour: the court said it was just that and not the same as attempted suicide. And because it is only suicide, or near-suicide, that actually demands an inquiry, one need not be held in this case.

Self-harm and the ways of addressing it are poorly understood, by the general public as much as by the courts, so practitioners may find the reason for this particular decision reassuring.

Wednesday, 1 July 2009

Some corner of a foreign field ...


An influential group of peers would like to change the law, to make it legal for relatives and friends to accompany someone who wants to commit suicide abroad.

And it seems that record numbers of Britons are waiting to use the services of Dignitas, the controversial, Zurich-based organisation that runs a clinic where people are assisted to kill themselves.

To many the proposed law-change might seem sensible and humane, but it could also be seen as an exercise in half-measures; a classic British fudge, consisting of hypocrisy and sentimentality in equal measure. It would allow Britons to salve their consciences by exporting the problem overseas.

The law in this area is already caked in fudge: although the CPS acknowledges that prosecutions are unlikely, it has refused to publish a formal policy to that effect, leaving carers and family members to face at least the theoretical prospect of 14 years in jail. One woman, Debbie Purdy, has challenged this refusal, and the House of Lords is expected to announce its decision in her case any day now.

In its dealings with the terminally ill, the law is not honest. If killing oneself is wrong, we shouldn’t allow anyone to do it, even in Switzerland; but if we believe otherwise, we should say so explicitly and shape our laws accordingly. Half-measures, no matter how well intentioned, simply won’t do.

I memorize ev'ry line


A prison breached a prisoner’s rights when it intercepted correspondence with his doctor. That was the decision of the European Court of Human Rights recently, in a case the domestic courts had dismissed. (Szuluk v United Kingdom, Application no 36936/05, Decision published 17 June 2009)

The prisoner, Mr Szuluk, is serving a 14-year prison sentence for drugs offences. While awaiting trial, he suffered a brain haemorrhage and began receiving treatment from a neuro-radiologist. It was his correspondence with that doctor that, following his conviction, was monitored by a prison medical officer.

The government admitted the letters had been read, but it claimed that was perfectly lawful. The Strasbourg court disagreed. It held that the prison had acted disproportionately: there was nothing to suggest that Mr Szuluk had or would ever abuse medical confidentiality, and there was no reason to question his doctor’s good faith. Ordinarily, a prisoner’s correspondence with his doctor should have no less protection than that with his lawyer or his MP. Mr Szuluk was awarded damages of 1,000 euros and costs of 6,000 euros.

Mr Szuluk will like this decision, as will many prisoners and those that support them. It shouldn’t, however, make us complacent: the correspondence of those detained is nowhere near as secure as we might hope.

My own experience is of the law relating to mental health patients. For them, the Mental Health Act dictates when their letters can be intercepted and gives them some redress when it is read. But those safeguards are illusory. I have been involved in several cases where the correspondence of detained patients was seized by the police as part of a criminal investigation. In one case – a high-profile murder – the hospital had the nerve, and the resources, to challenge the police in the High Court. It lost. The decision has never been reported, but the court said that the Mental Health Act protections were only part of the picture, and that a patient’s right to privacy might be outweighed by the needs of a criminal investigation. I saw what the patient wrote and all I can remember is that, time-after-time, he asked about the welfare of his dog. The letters didn’t figure in his trial.

Why aren't more little old ladies being locked up?

Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards. The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It’s certainly true that the DoLS were introduced to fill a gap in the law – a gap rather embarrassingly revealed in 2004 by the European Court of Human Rights. So maybe we should be worried that the new safeguards aren’t being used.

The powers given by the DoLS aren’t unfettered: they can only be used with prior permission from a PCT or a local authority. And there are some broad problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.

The government predicted that before next spring, approximately 21,000 people would have their cases assessed, and that a quarter of them would then be brought within the DoLS. According to the first statistics, that isn’t going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, well over two-thirds say they have had fewer than five DoLS cases and almost a quarter seem not to have had any cases at all.

* If the experience of the first two months is anything to go by, only just over 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.

* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.

But there is another explanation for this: that in some – quite a few, in fact - parts of the country, DoLS-applications are being actively discouraged. That would be worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.

Child poverty: there will be a duty, but it shouldn’t be an onerous one

Many public bodies, including local authorities, police and the NHS, are to have new responsibilities for children who are in poverty.

The Child Poverty Bill was introduced into Parliament recently and will have its second reading soon. Speaking about the Bill, the Work and Pensions Secretary, Yvette Cooper, said the government still hoped to eradicate child poverty by 2020.

Amongst other things, county and district councils and London boroughs will have to:

* take the lead in making arrangements to reduce child poverty, and in fostering co-operation with and between ‘partner’ public bodies; and
* publish an assessment of the needs of children in poverty and a strategy by which those needs can be met.

The Bill is said to be influenced by recent climate change laws. In fact, the new duties resemble the ones imposed on local authorities and criminal justice agencies to formulate crime and disorder strategies and make public protection arrangements, imposed under the Crime and Disorder Act 1998 and the Criminal Justice Act 2003 respectively. Like them, the child poverty duties might prove less than onerous.

Some excitable commentators have already suggested that the Bill will promote litigation between competing public bodies. That is very unlikely. The new duties should not be hard to satisfy. Although the Bill imposes challenging targets on the government, it doesn’t extend them to public bodies in any measurable way, and in the case of the so-called partners, it imposes no targets at all; merely the duty to co-operate in the making of anti-child poverty arrangements. Surely that isn’t too much to ask.