Better Leicestershire than the Isle of Wight

It’s official: in the first year of the DoLS there were far fewer applications than had been expected. That might not be very surprising, but a new report reveals that although authorisations also fell short, it wasn’t by nearly as many as was supposed. And if you want the protection of the Deprivation of Liberty Safeguards (DoLS), you’re 200 times better living in Leicestershire than in the Isle of Wight.

Key findings
The report covers the period 1 April 2009 to 31 March 2010, which marked the first full year of the DoLS. It uses quarterly data provided by every local authority and NHS primary care trust in England. Among its key findings:

* There were 7,160 DoLS applications in England, compared to the government’s prediction of 21,000 for England and Wales combined.
* Consequently, there were also far fewer successful applications (3,297) than predicted (5,000). That said, the proportion of successful applications (46 per cent across the year) exceeded expectations, and it increased as the year went on, from 33 per cent in the first quarter to 54 per cent in the last. Maybe the DoLS are becoming better understood.
* DoLS authorisations for people in care homes generally lasted longer than those for hospital patients: 60 per cent of those granted by local authorities, but only about a third of those granted by PCTs, were for more than 90 days. (Around a quarter of authorisations were for between 91 and 180 days, with care homes accounting for 50 per cent more of them than NHS hospitals did.)
* About four per cent of applications that were refused concerned patients who were nevertheless found to be deprived of liberty. (In the absence of an authorisation, the hospital or care home concerned would be acting unlawfully if it continued to deprive a patient or resident of liberty.)

Local authorities and primary care trusts
Both local authorities and NHS primary care trusts have DoLS responsibilities, and the new report shows that the former received 5,397 applications and the latter, 1,763. The split was therefore 75 per cent to 25 per cent, against a government prediction of 80:20. Furthermore, PCTs granted nearly 49 per cent of the applications they received, and local authorities, around 45 per cent.

Just over three per cent of applications were made not by patients or their relatives, but by third-parties, such as social workers, nurses or care workers. Of these, over 80 per cent were directed to local authorities and 20 per cent to PCTs, and around two-thirds led to full assessments being performed.

Urgent applications
It is possible, of course, for a DoLS authorisation to be granted by those responsible for the hospital or care home in which a patient or resident is deprived of liberty. But any such authorisation will only last for seven days, and it must be truly ‘urgent’. Surprisingly, perhaps, almost 5,000 substantive DoLS applications followed an urgent authorisation. Because every urgent authorisation should be followed by a substantive application, there must have been the same number of urgent authorisations. That number represents almost 70 per cent of all applications. It is worth bearing in mind what the DoLS Code of Practice says in this regard:

Wherever possible, applications for deprivation of liberty authorisations should be made before the deprivation of liberty commences. However, where deprivation of liberty unavoidably needs to commence before a standard authorisation can be obtained, an urgent authorisation can be given which will make the deprivation of liberty lawful for a short period of time. (Chapter 6, emphasis added)

And:

Urgent authorisations should normally only be used in response to sudden unforeseen needs. However, they can also be used in care planning (for example, to avoid delays in transfer for rehabilitation, where delay would reduce the likely benefit of the rehabilitation. (Paragraph 6.2, emphasis added)

There may be concerns that urgent authorisations are being misused. If so, they will be compounded by the fact that in fully 55 per cent of cases, the application that followed an urgent authorisation did not itself result in a substantive authorisation.

Regional variations
It has been clear for some time that DoLS activity is not at the same level in every part of the country. The greatest proportion of applications – 17 per cent - was received by local authorities and NHS primary care trusts in the East Midlands, and then in the London region (16.8 per cent), the South East (15.7 per cent) and the North West (10.7 per cent). The smallest proportion of applications was received in the North East (6.3 per cent) which also, perhaps oddly, had the second-largest proportion of approvals (52.8 per cent). The largest number of approvals was 54 per cent – again in the East Midlands - and the smallest, in the West Midlands (40 per cent) and the East of England (39 per cent).

But the new report is sufficiently detailed to show that the same wide variation exists within, and not just between, regions. Durham, for example, received 135 applications. In the local authorities bordering it, the next highest numbers were in Hartlepool, which received 67 applications, and Darlington (52). Gateshead had 28 applications (and Stockton-on-Tees 22), but Sunderland received only twelve and Northumberland only eight. The population of Northumberland is around two-thirds that of Durham.

The position is similar among local authorities in the south-east of England. Essex, for example, received 203 DoLS applications. Among its immediate neighbours, the next busiest was Hertfordshire, but its 54 applications represented only slightly more than a quarter of the total across the border. And the next highest had less than a fifth: Suffolk and Waltham Forest, with 35 each. Redbridge had 33, but then it was Havering, Enfield and Southend-on-Sea, all in the low-20s, before Thurrock on 15 and the Medway Towns on eight applications. Peterborough is only one local authority (Cambridgeshire) away from Essex, and it recorded no applications at all. But one of Peterborough’s neighbours, Northamptonshire, had 61 applications more (and has a population only around a quarter larger).

Essex cannot, however, claim the most DoLS applications among local authorities. That honour falls to Leicestershire, where they numbered 233. Completing the top four are Lancashire, which received 192 applications, and West Sussex, which received 163. The majority of local authorities received fewer than 50 applications, while Torbay and the Isle of Wight each received three, and Bath & North East Somerset and the Isles of Scilly were among the local authorities claiming to have received two and no applications respectively. Given that the DoLS are far more likely to affect people over 65 years-of-age (see below) these negligible returns are surprising, coming as they do from areas with significant numbers of aged residents.

Among NHS primary care trusts, Leicestershire was supreme, with Leicester City PCT claiming 136 applications and Leicestershire and Rutland PCT 115. The next busiest PCT was Nottingham, with 47 applications, followed by West Sussex (39) and Manchester (35). The majority of primary care trusts received fewer than 25 applications, and despite the relatively high number (36) claimed by its partner local authority, Blackburn with Darwen PCT did not receive a single application, a distinction it shared with Herefordshire, the Isle of Wight, Barking & Dagenham and Greenwich Teaching PCTs.

These combined statistics, therefore, reveal some striking anomalies, not least between Leicestershire, where there were 601 applications, and the Isle of Wight, where there were just three. Their populations differ greatly, of course, but whereas in the former region it took only 1,075 residents to account for each DoLS application, in the latter region it took 4,667.

Sex and age
The new report says a greater proportion of applications (53 per cent) concerned women than men. This disparity might, however, be a function of demographics, because two-thirds of all applications were made in respect of patients over 65 years-of-age, and women are more numerous in that group. (In fact, the rate of applications per 100,000 of population for those over 65 is nine times that for the 18-64 age-group.)

Ethnic origin
Over 90 per cent of applications concerned patients in the ‘White’ census group, with 2.6 per cent and 2.5 per cent concerning those in the ‘Asian’ and ‘Black’ groups respectively. In broad terms, the report says, these figures are “consistent with the make-up of the population as a whole”. It is nevertheless striking that a smaller proportion of DoLS authorisations were refused for patients in a minority ethnic group than for ‘White’ patients. In the case of ‘Asian’ patients, the difference is fully five per cent.

Refusals
In 83 per cent of cases, refusal of a DoLS authorisation was because deprivation of liberty was not felt to be in the patient’s best interests. Given the nature of best interests assessments, that might, of course, mean that the patient was not in fact deprived of liberty (however that concept is to be understood).

As might be expected, given the greater number of applications they received, local authorities generally accounted for a larger proportion of the refusals in each class. The exception, however, was ‘eligibility’ – essentially, the decision whether a patient might be better detained under the Mental Health Act. Here, fully two-fifths of refusals were for patients in hospitals. (Given that there are more hospitals in which the MHA may be used than care homes, that is not, perhaps, so surprising an outcome.)

To know at all costs?

The law has struck a blow for patients’ rights, but maybe at the expense of their best interests

The Upper Tribunal (UT) is the new court of appeal from mental health tribunal decisions. The tribunal that makes those decisions is the First-tier Tribunal of the Health, Education and Social Care Chamber (FtT), the successor to the MHRT. In a recent case, the UT had to consider the way the FtT had dealt with a man who is being medicated covertly (RM v St Andrew’s Healthcare, 23 April 2010).

The FtT ordered that information including the fact of covert medication be withheld from the man, but the UT set that order aside. While disclosure might cause the man serious harm, the UT said that prohibiting disclosure would not be not proportionate. This would be the case, even though the UT was told that when the information had been disclosed to the man previously, he had defaulted from his treatment, his condition had deteriorated, and he had had to be both restrained and secluded. Furthermore, his condition had improved of late, largely because covert medication had been re-introduced.

The UT summarised the relevant case law:

* It is “beyond argument and not in dispute” that openness is generally required, and that a hearing can be fair, even though every document is not disclosed.
* While a party’s solicitors might not be able to disclose information to their client, they can still take his instructions on its themes.
* In ‘control order’ cases, it would be unlawful to deny disclosure of evidence to detainees and their lawyers, even though it would be granted to the ‘special advocates’ appointed for them by the state.

Here, the UT found for the patient’s right to know. Without disclosure of that fact that he was being covertly medicated, any FtT hearing would be “a mere mummery”. Either the patient would have to be excluded or the lawyers and clinicians, and even the tribunal members, would be prevented from discussing everything they knew. Refusing disclosure would have involved not just “a compromise between justice and openness”, but “the sacrifice of the patient’s right to challenge his detention effectively”.

There is a certain logic to this decision, founded, clearly, in the ECHR and the Human Rights Act. But there is also reason for concern. The UT summarised one line of argument for the patient as follows: “If detainees under control orders are entitled to disclosure of the case to be answered even at the risk of a terrorist attack, so the more must the patient be entitled to disclosure even at the risk of a deterioration in his own condition or potentially his death” [emphasis added]. These were not the UT judge’s own words, admittedly, but he acknowledged that they represented the logical conclusion of the process his decision sanctioned. If, in the cause of a ‘fair trial’, a patient must be able to put his case, even if the result might be his own death, we have surely travelled a long way not just from the dusty paternalism of the past, but also from any, perhaps more contemporary, notion of ‘best interests’.

More reasons … and more money spent on lawyers? That’s what the new appeal tribunal seems to want

It is now possible to challenge decisions of the mental health tribunal without going all the way to the High Court. The new tribunal, which has taken over from the much-loved Mental Health Review Tribunal (MHRT), is the First-tier Tribunal of the Health, Education and Social Care Chamber (Mental Health) (FtT). If that name recalls Jimmy Saville’s Old Record Club – “That’s: open bracket, I Can’t Get No, close bracket, Satisfaction” – so does the title of the new appellate court: the Upper Tribunal (Administrative Appeals Chamber).

The Upper Tribunal (UT) is finally getting into gear, and some of its early judgments are about the reasons the FtT gives for its decisions.

Satisfactory reasons
In the case of RH, the UT said those reasons were perfectly adequate (RH v South London and Maudsley NHS Foundation Trust (Restriction Order), 8 February 2010). The FtT had refused to discharge RH from conditional discharge, even though all the professionals, including his responsible clinician and social worker, and an independent psychiatrist, supported his case. The tribunal had formed a different, more pessimistic view of the risk he continued to pose.

When considering RH’s appeal, the UT said there is a difference between a case where the tribunal disagrees with the clinical judgements of witnesses (where the explanation will have to be more detailed) and one where the only disagreement is as to the inferences to be drawn from those judgements. This was an example of the latter case, where the tribunal need only give sufficient reasons to show that it has directed itself properly as to the law and had regard to the appropriate matters.

Is this the job of the NHS?
Although this was sufficient to dispose of the appeal, the UT was also concerned that neither the hospital nor the Secretary of State had taken part in the proceedings. It said this approach was understandable in the past, when MHRT decisions were challenged by judicial review and the tribunal itself took the lead. Now, however, the UT said it is “extremely unsatisfactory” for hospitals (for example) to make no submission at all, for there is “a public interest in appeals at this level being properly argued”. Hospitals and the Secretary of State, the UT said, “have an interest in the standards of adjudication in mental health cases, [so] one might also expect them to take an interest in the way mental health law is developed”.

This comment was not central to the case, but it does raise a question that demands a response. And that response might be another question: why? Why should the NHS shoulder the burden – and the cost – of refining mental health law or, more to the point, of correcting the manifold errors of the First-tier Tribunal?

The second appeal came in the case of a restricted patient who suffers from anti-social personality disorder (DL-H v Devon Partnership NHS Trust and Secretary of State for Justice, 12 April 2010).

A difficult case
The UT acknowledged that this had been a difficult case: the statutory definition of ‘mental disorder’ had changed between the evidence being prepared and it being heard. The decision of the FtT was nevertheless set aside, because it had not been properly explained.

The FtT had decided not to discharge the patient, either absolutely or conditionally, but the UT said its reasons for doing so were inadequate. On the question of risk, for example, the FtT had excluded the evidence of the patient’s expert witness for a reason that was equally applicable to that of his responsible clinician.

In general, the UT said that FtT reasons must “at least” say what points the tribunal regarded as decisive, and that they will have to be more detailed and more compelling if the overall decision is a surprising one.

Appropriate treatment
Then, the UT turned once more to peripheral matters. It said that because of the way ‘medical treatment’ is defined in the Mental Health Act, it is not hard to satisfy the requirement that ‘appropriate’ medical treatment be ‘available’ for the patient. But this means that a patient “may be contained for public safety rather than detained for treatment”. To guard against this danger, the UT said that the FtT “must investigate behind assertions, generalisations and standard phrases”. Among the questions it said should be asked, and that services and clinicians can now expect to be asked, are: “what precisely is the treatment that can be provided?” “What discernible benefit may it have on this patient?” “Is that benefit related to the patient’s mental disorder or to some unrelated problem?” “Is the patient truly resistant to engagement?” This tribunal didn’t even do that.

Better to be detained?

The High Court recently considered the case of Mr Mwanza, who suffers from mental illness and has on occasions been detained in hospital. Having become destitute, he sought to enforce his after-care rights, and in particular, to compel a local authority to provide accommodation for him and his family. He was not successful. (R (Mwanza) v London Borough of Greenwich and London Borough of Bromley [2010] EWHC (Admin) 1462)

Mental Health Act
Having been detained under section 3 of the Mental Health Act 1983 (MHA), Mr Mwanza was, of course, entitled to have after-care services provided to him under section 117. But that didn’t help him secure a home.

The judge ruled that accommodation is not necessarily part of the services a section 117 authority must provide. Those services are simply the ones that will meet a need arising from the patient’s mental disorder. The judge said:

“It may be that, if a former patient were unemployed or homeless, that would increase the chance of deterioration in his mental condition, but that would not require an authority to provide employment or housing … The need for work or a roof … are common needs, and do not arise from mental disorder.”

And he added:

“[I]t simply cannot have been the intention of Parliament to have required local authorities … free of charge, to provide a roof over the head of former section 3 patients.”

The judge said this conclusion was supported by comments in the National Framework for NHS Continuing Healthcare (which was published in 2009) and also by the fact that where housing is not provided under the MHA, it might nevertheless be possible to provide it under section 21 of the National Assistance Act 1948 (NAA). (It didn’t, however, prove possible here.)

National Assistance Act
Amongst many other things, the NAA provides a ‘last resort’ entitlement to residential accommodation. Under section 21(1)(a), Mr Mwanza would have to show that, by reason of age, illness, disability or other circumstances, he was in need of care and attention that was not otherwise available to him. He failed in this task, both on the facts and on the law.

The judge held that a person would not come within section 21 solely because he required accommodation. The authorities established, he said, that more was required; that a claimant would have to show that things were being done for him that he could not or should not be expected to do for himself. Following an ‘unimpeachable’ assessment, the local authority had concluded that in Mr Mwanza’s case, there were no such things.

There was, however, a second reason for denying Mr Mwanza section 21 support, and it had to do with his wife: his presence in the United Kingdom would be lawful only while she had leave to remain to here. But the judge said that leave had expired in February 2006. Because of an amendment introduced by New Labour in 1999, a person who would otherwise qualify for accommodation under the NAA will lose it if he does not have leave to remain in the UK. This was sufficient to deny Mr Mwanza and his wife accommodation, and the court said a similar result was brought about by section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (NIAA), and for a similar reason.

The NIAA exclusion must be dis-applied if such is necessary to avoid a breach of a person’s ECHR rights. Here, however, the judge held that no such breach would occur: the family appeared fully able to return to its country of origin (which, admittedly, some members had last seen 10 years ago) and Mr Mwanza said only a lack of the necessary funds had preventing him doing so already.

Comment
This case tells us some important things: first, that housing need not be part of a patient’s section 117 entitlement. That suggestion is the latest one in a debate that has been raging for many years, but in this case at least, it seems insecure. The judge justified it on the grounds that housing could just as easily, and more appropriately, be provided under the NAA. But as his judgment went on to demonstrate, the fact that someone needs accommodation might not be enough to ensure that he is given it under section 21. Oddly perhaps, the judge doesn’t so much as acknowledge that apparent contradiction.

The case also tells us that failed asylum seekers have a better chance of securing community services if they have been detained under section 3 of the MHA. That is because, unlike the NAA – and, for that matter, sections 95 and 98 of the Immigration and Asylum Act 1999 (which contain similar provisions) – the entitlement conferred by section 117 does not depend upon a former-patient’s immigration status. This distinction establishes another group of patients – alongside those who would otherwise have to pay care home charges when they leave hospital – whose material conditions on discharge might be enhanced if they were detained under the Mental Health Act rather than being admitted informally. It didn’t, however, do anything for Mr Mwanza.

As broad as it is long?

Sometimes, a guilty plea cannot be the end of the story. That is the lesson from a recent case in the Court of Appeal. (R v Walton, 5 August 2010) Where a man who had been allowed to plead guilty to several offences in fact lacked the capacity to do so, his conviction was overturned. The outcome, however, remains substantially the same.

Andrew Walton has a history of offences, including burglary and criminal damage. He has breached two conditional discharges and failed to surrender to bail. When he was arrested again, for being drunk and disorderly, police found bread knives in his possession. He was charged with two offences in that regard, and also, subsequently, with sexual activity in the presence of a child.

There was a wealth of expert evidence concerning Mr Walton. It was said that he had been sexually abused as a child and that his IQ might be as low as 54. A psychologist said he had rarely come across such profound disability and it was felt that Mr Walton was unfit to plead. But this evidence was only used for the purpose of sentencing. Mr Walton had entered a plea of guilty, and a hospital order was imposed upon him under the Mental Health Act 1983. So great a risk was he thought to pose that special restrictions were added, limiting the circumstances in which he could be discharged or even given leave.

Mr Walton appealed this result, arguing that if the expert evidence had been treated properly, he could not have been required to enter a plea. The evidence showed, he said, that he had not understood the significance of a guilty plea: he simply thought it would help him get away earlier to catch his train.

The Court of Appeal was sympathetic to Mr Walton’s arguments, and it quashed his conviction in favour of an absolute discharge. The hospital order and its restrictions would, however, continue to have effect.

Despite his success, Mr Walton remains confined. That state-of-affairs reflects the fact that if appropriate inquiry had been made and Mr Walton found unfit to plead, the court would still have enjoyed the power to do what it did. That power might arise under a discrete statute – the Criminal Procedure (Insanity) Act 1964 (as amended) – but the result of its use is precisely the same: the patient is subject to a hospital order and liable to be detained in hospital under the Mental Health Act 1983.

Another review

Another of my books, The Nearest relative Handbook, was reviewed recently in the Solicitors Journal. The reviewer was David R Pickup, a barrister who practises from St Johns Buildings chambers in Manchester. This is what he wrote.

A client telephones the office and tells you that Aunt Flo is demented and no one will help get her into hospital. Aunt Flo then phones you and asks why the nice social worker is talking to her husband about getting her admitted. You finally succumb to the pressure of it all and get sent to the hospital for distressed lawyers and you want your nearest and dearest to get you out and back to the office.

These scenarios are all about the role of the nearest relative. A phrase used in mental health law for the important person who has a function in admissions where a patient does not agree to detention and also in discharge. This is not to be confused with next of kin, which has little reality in law or otherwise, but is readily understood by most people.

This book covers the complex subject in an excellent way. It is clear and full of case studies which illustrate the point well. The law has changed recently with amendments to the 1983 Mental Health Act and these are discussed. In the book we find who the nearest relative is and how the law treats who is the best person to be consulted about admissions, who can object, who can request an assessment for admission and in some cases request a person’s discharge. A person can be removed if not suitable to act in this role.

The law has been updated to introduce equal treatment to same sex relationships, which the book also covers. Mental health lawyers will find this an extremely useful reference.

Is liberty relative?

The Court of Appeal seems to think so, and that is relevant to the Deprivation of Liberty Safeguards

Some suggest that there is such a thing as ‘residual liberty’; that although I might lose my liberty by order of the court, or because of my mental disorder, I do not lose so much of it that I cannot subsequently lose more. The Court of Appeal made this suggestion recently (Iqbal v Prison Officers Association [2009] EWCA Civ 1310). Although it is based on an earlier case in that court, it sits uncomfortably with the view of the House of Lords in the same case (R v Deputy Governor of Parkhurst Prison and others, ex parte Hague [1990] UKHL 8) and with a later decision of the same court. But what would be the implications of residual liberty for the Deprivation of Liberty Safeguards (DoLS)?

The DoLS are intended to protect incapable people in care homes and NHS hospitals who are deprived of liberty. There is, however, confusion about what that might mean. But what if the ‘liberty’ of which one must be deprived in order to come within the DoLS was to incorporate the ‘residual liberty’ mentioned in Iqbal? (That must be a legitimate question. The nature of liberty surely cannot differ according to whether it may be taken away by the criminal law or the civil law.)

A question of degree
The notion that some vestige of liberty might survive detention suggests that one may be deprived of liberty to varying degrees: I am undoubtedly deprived of liberty if I am committed to prison or detained in hospital, but it seems that is not the end of the story, and that by being confined to a room or cell, perhaps, I might be further deprived of liberty. (That would in itself be problematic for the DoLS: the notion is not contemplated, either in the safeguards themselves or in the accompanying code of practice, and as a result, we are not told what ‘degree’ of deprivation of liberty would have to be achieved before they were engaged.)

This suggests that the question not just of how far one is deprived of liberty, but also of whether one is deprived of liberty at all, is also a relative one. And this in turn seems to demand a comparison between one’s current and former states, and to entail that one’s ‘residual liberty’ will only be in question if one’s current state represents a further degree of confinement from one’s former state. (A man’s ‘residual liberty’ is not in question if, it being lawful to imprison him, he is simply moved from one gaol to another, or from a gaol to an island. It is in question, however, if lawful authority exists simply to confine the man to a room, but he is subsequently locked in a cupboard.)

But what, in this context, does the ‘residual’ in residual liberty actually mean? With what former state is one’s current state to be compared; with some pure, absolute, antediluvian state of liberty, perhaps? (See further here.)

Comparison
An alternative view, which seems implicit in the few decisions that actually consider residual liberty, is that the comparison is not with abstract liberty at all, but with the actual state that immediately preceded the current one. In some ways, this would be sensible: where a man confined to his own house by disability is moved to a hospital that he cannot leave for the same reason (and only for that reason), it seems odd to argue that he is deprived of liberty. (To do so would be to imply that alongside their negative duty not to prevent the man from leaving, the proprietors of the home have a positive duty actually to enable him to do so, and that if they do not fulfil that positive duty, they will have to resort to the DoLS or run the risk of being held to have unlawfully detained him.)

But such a course might also produce less welcome results. Consider, for example, two men in a care home, each of whom is confined there under lock and key: Mr A came from his own home, whereas Mr B came from the maximum-security wing of a local prison. If the question of whether a person is deprived of liberty really is a relative one, and the person’s immediate past state is relevant, Mr A’s current state amounts to deprivation of liberty, whereas Mr B’s does not, even where the interventions are precisely the same in the case of each man.

This curious position is the result of treating deprivation of liberty as a relative concept, as someone might do, and might have to do, who accepts the notion of residual liberty. It sits oddly with the DoLS, however, and might imply an even more damning conclusion: not just that ‘deprivation of liberty’ was poorly thought-through, that has been clear for some time. Despite its crucial place in the safeguards to which it lends its name, the concept fails to address key jurisprudence and is fatally undermined as a result.

A new review

Last week's edition of the New Law Journal carried the following review of my essay collection, A Tendency to Laugh and Sing, after which this blog was named. It was written by Tim Spencer-Lane, who is a lawyer with the Law Commission

Dr David Hewitt will be a name familiar to most NLJ readers, especially mental health lawyers. As well as being a prolific writer and commentator, he is a mental health solicitor, visiting fellow of Northumbria and Lincoln Universities and a judge of the mental health tribunal.

This book is a collection of articles and lectures written by Dr Hewitt between 1995 and 2007, including several that appeared originally in NLJ. Some are short and sweet (for example, a one page letter to the editor of the British Medical Journal on the landmark Bournewood case) others are lengthy and academic.

The book is divided into five chapters. The first looks at the impact of the European Convention on Human Rights on mental health law. The second deals with significant issues in mental health case law during the period. The Bournewood case and subsequent legal developments in the field of mental incapacity are covered in the third chapter. The fourth looks at the previous government’s lengthy attempts to overhaul mental health legislation, including the aborted draft Bills of 2002 and 2004, which ended with the amending of the Mental Health Act 1983. The final chapter is described as a “ragbag of articles” which do not fit easily into the other chapters—such as the definition of a hospital in mental health law and risk assessments in relation to violent sexual offenders.

Poignant
The poignant title of the book is taken from an official report on a 19-year-old Mexican-American woman who was arrested in Arizona in 1912 and who was subsequently confined involuntarily for over 50 years. But Dr Hewitt often does good titles; my personal favourite being “Bournewoodn’t” for an article where he argues that the new deprivation of liberty safeguards introduced by the Mental Health Act 2007 may not have protected Mr L, the original Bournewood patient. The period covered ensures that the book provides a fascinating historical record of a tumultuous era in mental health and incapacity law reform.

Civil & human rights
However, the real strength of the book is to showcase Dr Hewitt’s impressive body of work and unique writing style. He presents intellectual analysis in a down to earth and readable style, and is not afraid to explore original and independent lines of argument. For example, while other lawyers condemned on civil rights grounds the previous government’s proposals to reform mental health law, Dr Hewitt claimed that the reforms were unnecessary since they had already been introduced via case law. In a series of articles contained in the book, he argued that the criticisms should not just be aimed at the government but at the deep flaws within existing mental health legislation which had already, for example, diluted the strength of the “treatability test” and allowed the introduction of compulsion in the community via long term leave from hospital. Perhaps his arguments lacked the passion of the human rights lobby but nonetheless they raised significant intellectual challenges for the then government.

Furthermore, in several other articles also contained in the book, Dr Hewitt develops an intriguing line of argument on the distinction in law between a “detention” and a “deprivation of liberty”, with only the latter, he suggests, eligible for the Art 5 safeguards under the European Convention on Human Rights. The devastating implication of Dr Hewitt’s argument is not only that the deprivation of liberty safeguards are otiose but that Art 5 is not engaged where patients are detained under the Mental Health Act 1983 in their best interests. If correct, this situation requires urgent remedial attention since it strikes a lethal blow potentially to the legal rights of many mental health patients. The book does have its faults. Many of the articles may now be of academic interest, the substantive legal issues and case law have since been settled, and some articles repeat each other. But overall this book sets out an impressive body of work. Dr Hewitt’s work has always appealed primarily to mental health specialists, and if you fall within this camp, this will be compulsive reading.

Reports reported

Most coroners are receiving an appropriate response, but that might not be the whole story

Where, after an inquest, a coroner believes that it might prevent other deaths, he can write to an appropriate authority, reporting the evidence he has heard. Any such report is sent under rule 43 of the Coroners Rules, and the coroner must copy it, and any response, to the Lord Chancellor. An analysis of those reports has just been published. Its contents might be seen as reassuring, but one or two significant concerns remain.

Statistics
In the six months from 1 April 2009, there were 164 inquests in which rule 43 reports were issued. A third of these concerned ‘hospital deaths’, and nearly a fifth, ‘road deaths’. Eight per cent, meanwhile, concerned work- or health and safety-related deaths, and a similar proportion, mental health-related deaths. The new analysis contains nothing, however, to indicate how these classifications were reached: was it according to the place or means of death or to its immediate cause, or to either the content or the recipient of the rule 43 letter? That deficiency is significant, for it might render the statistics unreliable. If, for example, someone were to die in front of a train, having absconded from the hospital where she had been receiving compulsory psychiatric treatment, would any rule 43 letter be classified as mental health-related; or as concerning a hospital death or one in custody; or as ‘railway-related’? This concern is compounded by the brief summaries provided in the new analysis, which suggest that some ‘deaths in custody’ actually raised distinct mental health concerns. Only one death, furthermore, was classified as ‘railway related’.

Wider implications
The new analysis provides details of some rule 43 reports that might have wider implications. In the ‘drug- and medication-related’ category, these include the death of a man who, believing it to be ecstasy, swallowed a substance used for de-worming animals. The coroner wrote to the Home Secretary and subsequently, the substance was brought within the Misuse of Drugs Act 1971. The analysis also mentions the unfortunate church warden, who died when he fell from his own bell-tower. After hearing that the man had not been wearing a safety harness, the Coroner wrote to the Archbishops’ Council, inviting it to take appropriate action. The Council, however, replied that as each parochial church council is autonomous, there was little it could do. It is only in this part of the analysis that we get a flavour of the responses coroners receive, but it is clear that recipients don’t always accept the content or the implication of rule 43 reports.

Coroners
In the period in question, rule 43 reports were issued in 61 of the 114 coroner districts. (The number of coroners that made no reports – 53 - is slightly down on the previous period’s figure). The most reports again came from the Greater Manchester South district, where ten reports compare with 18 in the earlier (and longer) period, but also from Brighton and Hove, which could only previously claim two reports. The City of Manchester, however, and Cardiff and the Vale of Glamorgan, are two coronial districts in which the number of reports fell considerably, to four and six respectively, from 12 and 15. The new analysis acknowledges that the highest-reporting districts are not representative of the whole. When they are discounted, the average number of rule 43 reports in the relevant six-month period is 1.06 per coroner district, or 1.98 per district making such a report.

Responses
Rule 43 now also requires recipients to respond to reports, and to do so within a specified period. On the face of it, the figures in the new analysis are encouraging, for they suggest that where a report was issued, no response was outstanding that was due within the same reporting period. That might not, however, be the whole story.

The format of the analysis allows to be listed as outstanding only responses to reports issued within the current reporting period. It provides no information about responses listed as outstanding in last report, and there were more than a hundred of those. Before April 2009, for example, the Manchester City coroner sent a rule 43 report to an electronics company. We know that the report concerned the maintenance of ‘cherry-picker’ machines and a response was outstanding at the end of the reporting period. What we cannot tell, however, is when, or even whether, that response was received.

Where organisations receive coroners’ reports, it seems most are complying with the amended rules. But they aren’t receiving them all that often. The official analysis suggests that on average, fewer than three rule 43 reports are made in each coroner district per year. And the limited scope of that analysis can itself minimise the embarrassment caused to those who persistently fail to respond.

Home thoughts, abroad

I wrote recently about the Deprivation of Liberty Safeguards (DoLS), by which incapable people can be deprived of liberty but given some basic protection at the same time. (See: here) I received a number of heartfelt, though by no means unanimous, responses, so I thought it might be helpful to report something of what my correspondents said.

No one disagreed that the number of DoLS applications is well below what was expected, but not everyone accepted that in some places, applications are actually being discouraged. One DoLS lead was “disappointed” by my suggestion. He said, “My team and I are working very hard at promoting the importance of the safeguards and very much take an if-in-doubt-apply approach”, and he described the DoLS as “a very powerful tool for positive change and holding services to account.”

Some correspondents felt the statistics might not reflect bad practice. One, a doctor in an area with little DoLS activity, referred to his local training strategy, which “emphasised that deprivation of liberty amounts to relatively draconian control over someone's life.” He favoured an approach based on the Mental Health Act: “For the last 20 years I have been a proponent of the use of guardianship as a means of making important accommodation decisions for people who lack capacity, and we appear to have roughly trebled the number of guardianships used in the last ten months.” Of course, while guardianship may be appropriate for those who are not within the DoLS, the conventional view is that it has little to offer where someone is deprived of liberty.

Most correspondents considered the safeguards unduly complex, and some reported general opposition to their use. One, a Mental Capacity Act (MCA) co-ordinator, said, “Many senior people consider deprivation of liberty a ‘bad’ thing and therefore are reluctant to invite external scrutiny on whether they are responsible for it.” Some felt the process might fail even without overt opposition. A DoLS lead wrote, “Care managers are not always recognising behaviours that warrant the need for a referral”, while someone else said the MCA “is not clearly and properly understood by many practitioners on the ground and certainly not by managers of homes and hospitals”. This might, he felt, have profound implications: “I am not sure that decision-makers are even getting through the starting gate of the MCA, never mind reaching the logical finishing line that is DoLS.”

Several correspondents identified poor planning as a problem. The doctor who favoured guardianship said that before resorting to the DoLS, everyone “should consider first whether they could change the care plan so that an individual was not being deprived of their liberty - emphasis on choice, few restrictions and keeping relatives on side.” One DoLS lead, however, saw this differently: “care managers drag their heels trying endless means of pacifying anxious service-users, only resorting to a DoLS referral after about three months of perseverance.” Far from it being necessary to keep relatives onside, she said most are “fearful of the possibility of loved ones being discharged to their care, and therefore their views about whether there is deprivation of liberty are somewhat distorted”.

This correspondent said that recently, “a wife told an assessor that her husband was absolutely fine, rarely spoke of wishing to leave the care home and could easily be persuaded to behave. This was in stark contrast to what had actually been occurring.”

Inadequate recording was also identified as a problem, not least by this same DoLS lead: “One of our referrals … failed due to insufficient evidential logging of the service-user’s behaviour. This raises the question: given that few care homes are meeting the guidelines for accurate and consistent recordings, will we ever be able to evidence a deprivation of liberty?”

Finally, several correspondents agreed that uncertainty about deprivation of liberty itself is a significant problem, and that different assessors might take different views, especially in more complex cases. A DoLS lead said, “I conclude that unless a person is shouting ‘let me out’ from the rooftops, wrestling staff to the floor and needing to be sat on, constantly making an opportune exit through any open door or needing heavy sedation to control their behaviour, it is just not obvious enough to amount to deprivation of liberty.”

The Deprivation of Liberty Safeguards continue to excite great debate, even if – or maybe because – they are so rarely encountered. From my own postbag, however, it seems that views are polarised, and that some people are profoundly dis-satisfied, both with the purpose of the DoLS and with the way they are used.

(A shorter version of this post appeared as a letter in the New Law Journal.)

Expedient, but for whom?

Some police forces have leapt very eagerly upon the Mental Capacity Act (MCA); so eagerly, in fact, that they have begun to use it in preference to the Mental Health Act. That might be a perilous course.

Section 5 of the MCA gives all manner of people the power provide care to an incapable person. It seems it is now being used to take people to hospital who appear to be suffering from mental disorder.

That is already covered by section 136 of the Mental Health Act (MHA), of course, provided the person concerned is in a public place and appears to be in immediate need of care and control. Thereafter, he may be held in hospital for up to 72 hours while being assessed for possible admission, whether as an informal or a detained patient.

It is not hard to see why in this situation, the MCA might be preferred to the MHA: a constable who uses section 136 might have to remain with the patient while a bed is found for him, which might not be for several hours. The section 5 power, however, appears to carry no such expectation, and it is not subject to the formal arrangements that would otherwise apply.

But there are significant problems with this approach. First, of course, while section 5 may be invoked in a public place, it will only apply to someone who is, or appears to be, incapable, and so might not cover everyone to whom section 136 might apply.

The second problem will affect doctors and nurses more than constables, but it should be no less compelling for that. While section 136 includes the power to detain a patient after he arrives at hospital, section 5 does not: the relevant constable cannot confer such a power on those who receive the patient, and the MCA itself does not contain it. If the patient is incapable, it might be possible for the hospital authorities to invoke the Deprivation of Liberty Safeguards (although they will have to act with great speed in order to do so); but if he is capable, they will only be able to detain him substantively by using the MHA, a possibility section 136 would have given them fully 72 hours to investigate.

The use of section 5 of the Mental Capacity Act instead of section 136 of the Mental Health Act might well be expedient for chief constables, but that will almost certainly be at the expense of the NHS. It should not be contemplated, therefore, without proper, informed consultation with all concerned.

No place like home?

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 is certainly true that the DoLS were introduced to fill a gap in the law; a gap rather embarrassingly revealed by the European Court of Human Rights in the 2004 case of HL v United Kingdom. Presumably, therefore, it would be a cause for concern if the new safeguards were not being used.

The government forecast that before next spring, around 21,000 people would have their cases assessed under the DoLS and a quarter of them would then be brought formally within the safeguards. According to the latest statistics, that is simply not going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, a large number claim to have had very few DoLS cases, and 14 have still not had any cases at all.
* If the experience of the first seven months is anything to go by, only around 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.

These statistics are unpublished and unofficial, but they suggest that the reality will fall well short of the government’s own forecast for the DoLS, a forecast that was widely criticised for being too conservative. So, what is going wrong?

The powers given by the DoLS are not unfettered: they can only be used with prior permission from a PCT or a local authority. That in itself is controversial, given that it means that decisions about people’s liberty are now being taken by what are, with the greatest respect, administrative bodies. One problem in the Bournewood case was the patient’s lack of ready access to a court, and although the Court of Protection remains a long-stop, that problem might not have been solved by the DoLS. It is perhaps surprising that the Daily Mail hasn’t shown more interest.

Furthermore, the procedure for seeking DoLS permission is complex and bureaucratic - many would say unnecessarily so. It can take up to three weeks and involves several lengthy forms, six separate assessments and, usually, at least one psychiatrist and a social worker. Maybe that is what has made the procedure unpopular.

There are also broader 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.

And there is also great uncertainty about precisely when the DoLS apply, reflecting similar uncertainty about just what it means to be deprived of liberty. Surprisingly, given its importance to what are, after all, the Deprivation of Liberty Safeguards, the term is not defined, either in the DoLS or in the slim code of practice that accompanies them. And now, there is growing anecdotal evidence that practitioners are taken wildly divergent views. That is unfortunate, both in itself and for a further reason: the statistics suggest that where a request for DoLS permission is refused, the commonest reason is that the patient was not deprived of liberty. If that conclusion was reached in error, permission is being refused where in truth it should have been granted, and a vulnerable person is being unlawfully detained.

But there might be another, perhaps related, explanation for the low take-up of the DoLS: that in some – quite a few, in fact - parts of the country, applications are being actively discouraged. That would be very 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.

(This post first appeared as an article in the New Law Journal)

Deprivation aside, what is liberty?

Liberty is important, not least for the new safeguards that take its name. But what, in that context, does the word mean? The Deprivation of Liberty Safeguards (DoLS) are intended to protect incapable people admitted to hospitals or registered care homes. As the title suggests, they say that permission will be required before such people can be deprived of liberty. Given the importance of the notion, you might imagine that ‘deprivation of liberty’ is carefully explained. It isn’t: the DoLS use the term but don’t define it, and the accompanying code of practice says little that is original. In fact, the code simply restates the existing law, which might be where the problems begin.

Strasbourg
The DoLS seek to remedy defects identified by the European Court of Human Rights (ECtHR) in the Bournewood case. Those were defects in the common law, which the court said was too vague and too lacking in procedural safeguards to give many incapable people the protection demanded by the ECHR (HL v United Kingdom [2004] 40 EHRR 761).

The defects would only be apparent where Article 5 of the Convention was engaged; where, in other words, someone was deprived of liberty. The ECtHR said, “the starting-point must be the concrete situation of the individual concerned”, and that in deciding whether a particular intervention deprives someone of liberty, “account must be taken of a whole range of factors arising in a particular case[,] such as the type, duration, effects and manner of implementation of the [intervention] in question”. Crucially, the court said the distinction between deprivation of liberty, which will engage Article 5, and a mere restriction upon liberty, which will not, “is merely one of degree or intensity and not one of nature or substance” (HL v United Kingdom, above, paragraph 89). These words have proved extremely resonant.

The scale theory
The DoLS code draws heavily upon Bournewood. Noting the comments of the ECtHR on the crucial distinction, the code says: “It may therefore be helpful to envisage a scale, which moves from ‘restraint’ or ‘restriction’ to ‘deprivation of liberty’. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time” (Department of Health, 2008, Deprivation of Liberty Safeguards: Code of Practice, paragraph 2.2).

There are, however, several problems with the ‘scale’ theory of deprivation of liberty. The first concerns its range: rather than with ‘restriction of liberty’, which surely comes some way along, shouldn’t the scale begin with ‘liberty’ itself? Logically, of course, there must be a number of points on the scale, each one representing a particular intervention in a patient’s life, from those that represent only a slight diminution of liberty to those that approach deprivation of liberty. But the number of possible interventions is not fixed; new ones might be made from-time-to-time, and any of them might be modified in numberless ways. The second problem, therefore, is that we can never know precisely how to populate our scale. Imagining, as it seems we must, that the poles represent complete liberty and its deprivation, where on that scale are the various interventions to be placed, and, crucially, where in relation to each other? Is putting someone in a low chair closer to deprivation of liberty than to liberty, for example, and how does it stand in relation to shepherding someone away from an open door?

The third problem relates to something else said by the code: when deciding whether someone is deprived of liberty, we might ask “Does the cumulative effect of all the restrictions … amount to a deprivation of liberty, even if individually they would not?” (ibid, paragraph 2.6). This begs an obvious question: if all we have is the scale, on which single interventions are placed side-by-side, how are we to take account of the aggregate of two or more of them? How, in fact, are we to aggregate them at all, and even if we succeed in doing so, where precisely are we to place the aggregated intervention? Is shepherding someone away from an open door closer to deprivation of liberty than putting him in a low chair and reducing the length of his visits from friends? How will the scale help us decide?

Finally, of course, there is the problem inherent in the very notion of a scale: all it does is display subtle progressions between two points, so it cannot help us with the DoLS. The knowledge that the use of ‘baffle locks’ tends rather more to the right-hand end than to the left is worthless. When what we most require is a ‘yes/no’ answer, the scale is deliberately designed to yield no such thing.

There is an alternative solution; one that is becoming common where the DoLS are used (or at least considered): to take the factors that suggest someone is being deprived of liberty and weigh them in the balance against interventions that are assumed to suggest the contrary. In that way, for example, the conclusion might be reached that a person placed in a low chair is not deprived of liberty today because he will see his friends tomorrow. Yet, though it might seem seductive, this act of balancing is also problematic, for it betrays a fundamental misunderstanding of the nature of liberty itself.

Liberty as an absolute
Among philosophers, there is surprising agreement about what liberty means. Even those who have very different views about its implications and, indeed, its derivation seem to accept that it is an absolute. For Thomas Hobbes, for example, “Liberty, or freedom, signifies the absence of opposition […] a free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he has a will to” (Leviathan, 1651, chapter 21).

Generally, John Stuart Mill’s views were different from those of Thomas Hobbes. That the two men shared a common view of the fundamentals of liberty, however, is clear from Mill’s description of his ‘harm principle’: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” (John Stuart Mill, On Liberty, 1859, chapter 1). And, a century later, Isaiah Berlin wrote, “I am normally said to be free to the degree to which no man or body of men interferes with my activity … If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved … By being free in this sense I mean not being interfered with by others” (Two Concepts of Liberty, 1958).

This notion, that we enjoy full liberty until, and only to the extent that, it is taken from us, is acknowledged in prison law. It would be surprising, therefore, if it did not obtain in the case of hospital and care home residents - the elderly or the profoundly learning disabled who might be expected to form the majority of DoLS patients.

Implications
The implications of this analysis are significant, not least when hospital and care home managers, those that advise them and even judges have to decide whether someone is being deprived of liberty. It seems clear that interventions said to increase liberty cannot do so; at best, they simply ameliorate the diminution of liberty. This means that it is incorrect to say of a man that the possibility he will see his friends tomorrow prevents his being deprived of liberty today, even though he is currently sitting in a low chair out of which he cannot rise. The balancing exercise described above is of no assistance whatsoever.

If liberty is absolute, all that need concern us for the purposes of the DoLS (and for other purposes besides) are these diminutions of liberty, and the only question is whether, singly or in combination with others, they are so significant as to amount to deprivation of liberty. (That much larger question is beyond the scope of this article.) Furthermore, the purpose of such diminutions is irrelevant, as is the context in which they occur. (So, for example, a person is as likely to be deprived of liberty in a high dependency unit as on a learning disability ward, something the DoLS, and many of those who should apply them, seem reluctant to acknowledge.)

Recourse to Thomas Hobbes and Isaiah Berlin might help answer a further problem raised in connection with the DoLS: what if a man has never been able to make use of his liberty? Do those caring for him have the additional, positive obligation to help him do so? Hobbes suggests not: “[W]hen the impediment of motion is in the constitution of the thing itself, we do not say it wants Liberty, but the power to move; as when a stone lies still or a man is fastened to his bed by sickness” (op cit). And for Berlin, “Coercion is not … a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced” (op cit).

The Deprivation of Liberty Safeguards are being used far less than even the government expected. That might be because they are complex, or even because, less than 12 months in, they are still unfamiliar. But it might equally reflect widespread ignorance about what it means to be deprived of liberty. That would hardly be surprising, for there is widespread ignorance about what liberty itself means. The Code of Practice only serves to compound the problem. It advances a ‘scale’ theory that is both logically and logistically flawed, and in so doing, it misrepresents the problem it purports to have solved. The philosophical lessons of the last four centuries are clear enough: liberty cannot be weighed in the balance. It is something we have and might lose, not something we can only hope to achieve.

(This post first appeared as an article in the Solicitors Journal)

Welfare concerns are not sufficient for the police

Although it may be possible under PACE to enter premises so as to protect people or property, that won’t be so where a constable’s only concern is welfare. That is the lesson of a recent case, in which a man who spat at one constable and head-butted another was found not to have assaulted them in the execution of their duty. (Syed v DPP, Divisional Court, 13 January 2010)

The relevant provision is section 17(1)(e) of the Police and Criminal Evidence Act 1984, which says that a constable may enter premises for the purpose, amongst other things, “of saving life and limb or preventing serious damage to property”. Last year, the Divisional Court said this power would cover protecting someone from themselves, as well as from someone else, but that in ‘life and limb’ cases, it can only be used where a constable reasonably believes serious bodily injury is imminent. (Baker v CPS [2009] EWHC (Admin) 299)

Here, the situation was not sufficiently serious to justify the use of PACE. Two constables had attended Mr Syed’s house following reports of a disturbance. He claimed to have been arguing with his brother, but became evasive when questioned further. The constables told Mr Syed that under section 17, they could enter his house if they were in fear for the welfare of anyone there. Mr Syed did not accept that this was so, and he reacted in the way that led to the charge.

The magistrates convicted Mr Syed, but the Divisional Court took a different view. It said section 17(1)(e) was clear: there would be a right of entry without warrant only where something serious had occurred or was in prospect. Here, there was no sign that anyone on the premises had been injured (or any property damaged) and Mr Syed’s explanation had not been contradicted. The threshold applied by the constables – concern for welfare – was too low. When entering the premises, therefore, they had not been acting in execution of their duty, and whilst Mr Syed might have acted improperly, his conviction could not be allowed to stand.

Though colourful, these circumstances might not be typical. Certainly, the section 17 power is sometimes invoked in the case of people with mental disorder, where a warrant has not been obtained under section 135 of the Mental Health Act and, because all concerned are on private premises, section 136 will not permit an arrest. Tempting though it may be in such circumstances for constables to ‘smell gas’, they should ensure before invoking PACE that what they wish to guard against really is serious harm.

MCA advocacy: the second year

The Department of Health has just reported on the second year of Independent Mental Capacity Act (IMCA) activity.

There have been increases across the board, with women more likely than men to have an IMCA, and those over 80 years-of-age the likeliest of all. Because of some schoolboy errors, however, the report’s conclusions about adult protection work are too pessimistic.

The largest rises were in the use of IMCAs in care reviews and with serious medical treatment, where the first year’s figures had been troublingly low. Decisions about a change in accommodation were also more likely to involve IMCAs, but overall, the Department doesn’t think that the service is reaching all the people it needs to.

When it comes to adult protection work, where the new report is equally downbeat, the picture is a little more complicated. This is for two reasons:

* The report mis-states the rate of increase in IMCA referrals. There were 681 in 2007/08 and 960 in 2008/09, a rise of 41 per cent (not the 29 per cent claimed).
* And the report has an exaggerated view of the powers of local authorities. It says an IMCA may be appointed even where there is only an allegation of abuse. In fact, that step can be taken only where adult protection proceedings have already been commenced or are at least in prospect. (That state-of-affairs was the subject of adverse comment last autumn, following research into the use of IMCAs in adult protection proceedings.)

These reservations notwithstanding, the latest figures are troubling. They show, for example, that while Cornwall made 50 adult protection referrals to IMCAs in 2008/09, and Devon made 43 and Birmingham 33, only 20 local authorities made more than ten referrals, and ten local authorities made no referrals at all.

Welcome ...

… to this blog, which, as the subtitle suggests, is about the point where law meets life.

You can find a brief description of the purpose of the blog here, and an explanation for its title here.

When I began the blog, I said that my posts would be infrequent. In fact, they now number almost 50, and they deal with subjects such as the Mental Health Act, the Mental Capacity Act, the Deprivation of Liberty Safeguards and inquests.

Initially, I saw the blog as a way of publicising the book whose title it shares, and along the way, I have also used it – somewhat shamelessly – to plug other publications, including my book on the nearest relative.

In the last eighteen months, however, I have also written about many other things as well, from vulnerable adults and fertility law to treating children, withholding mail and imprisoning transsexuals. And I have also discussed the medieval Ship of Fools (as imagined by Foucault) and tried to argue that coroners are just like professional wrestlers. You can find those posts, and many others, right here.

This is my only presence in cyberspace. I’m not on facebook, bebo or skype and – mercifully, I think – you won’t catch me tweeting (although I have just returned from a long walk, am now drinking a very nice cup of coffee and shall shortly be reading some PG Wodehouse).

If you would like to comment on this blog or its posts, please write to me at tendency@btinternet.com

Oh, and Happy New Year!

David