@BJhealthlaw

@BJhealthlaw

case law and news update

5 July 2016

@BJhealthlaw

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@BJhealthlaw

• Staffordshire CC v SRK & ors [2016]

• re Daniel X [2016]

• LA funding challenge

@BJhealthlaw

• P acquired a brain injury following an

RTA

• as a result P required 24 hour care

• compensation funded purchase of an

adapted bungalow & his care regime

• P under continuous supervision & control,

not free to leave and lacked capacity to

consent to care arrangements

• care arranged by a specialist brain injury

case manager & provided by private

carers

• accommodation & care costs funded

privately administered by a financial

deputy

• no input from the LA

• was P’s confinement attributable to the

state and Article 5 engaged?

@BJhealthlaw

Charles J: the state does not become

directly responsible where simply

investigating an alleged DoL, or by actions of

the CQC

“such steps are part of the supervision &

regulation of private providers of care”

@BJhealthlaw

Charles J: the civil court awarding damages,

the CoP when appointing a deputy and

trustees/attorney must make best interests

decisions. As such, should be aware of any

DoL

“that knowledge of the courts means that

the state has that knowledge”

@BJhealthlaw

• the State can therefore become

indirectly responsible for failing to

comply with its positive Article 5

obligations to prevent arbitrary

detentions

@BJhealthlaw

• this accords with the position under DoLS

for self-funding residents, whereby the

State becomes indirectly responsible

when the care home requests a DoLS

authorisation

@BJhealthlaw

• deputy should raise those issues with care

provider & LA to assess whether there is a

DoL or less restrictive option available

• CoP/civil court awarding damages and

trustee/attorney to whom damages are

paid should also ensure steps taken to

liaise with relevant LA

@BJhealthlaw

• once LA contacted this triggers its

obligation to investigate, support and

sometime make an application to the

CoP. A failure to do so would breach Art

5.

@BJhealthlaw

Charles said he had reached this conclusion

reluctantly

“it seems to me that…this…will add nothing

other than unnecessary expense and

diversion of private and public resources

that would be better focused elsewhere”

• 10 years old with autistic disorder & severe

LD, associated behaviours put him & others

at risk

• placed in specialist Children’s home & care

order in place

• constantly supervised + physical restrictions

to prevent him leaving the premises if

necessary & from moving around the

premises

@BJhealthlaw

• restrictions necessary to keep him safe,

to promote his welfare and prevent him

from harm

• parents unable to consent to the DoL

• s.25 Children Act not an appropriate way

to authorise the DoL (as confirmed in AB

(A child) 2015

• inherent jurisdiction should be invoked

@BJhealthlaw

• Article 5 is engaged

• transferred to a High Court judge to

authorise the DoL for 12 months

• the burden should be on the LA to apply

back to the court for renewal

• child care cases could do with being

listed before a High Court Judge at the

start

@BJhealthlaw

@BJhealthlaw

• published - 7 July 2015

• consultation open - 2 November 2015

• interim statement published – 25 May

2016

@BJhealthlaw

• disconnected from MCA

• limited scope

• conflicts of interest in local authority role

• length and complexity

• terminology

• inadequacy at scale

@BJhealthlaw

Outcomes focussed

Based in MCA

“non-elaborate”

ECHR compliant

Tailored scheme

@BJhealthlaw

• supportive care scheme (for those not

deprived of their liberty)

• restrictive care and treatment scheme for

those deprived of their liberty in both

registered settings and in the community

• new hospital/hospice scheme

• new first tier tribunal system

• amendment to MHA

• avoid duplication with existing legislation

• existing care plans to provide authority

for DoL

• cater for article 8 rights in the scheme

• tribunals & bespoke hospital system

• supportive care unpopular

• lack of money

• any system based on Cheshire West

unstainable?

@BJhealthlaw

• remain committed to the introduction of

a new scheme that delivers Art 5 ECHR

safeguards in a meaningful way for the

relevant person and their family

• however financial pressures mean that

original proposals too costly

@BJhealthlaw

• will now propose “more straightforward,

streamlined, flexible” scheme

• some amendments to MCA to deal with

Article 8 issues with more emphasis on P’s

wishes

• responsibility for establishing case for a

DoL shifted from provider to commissioner

@BJhealthlaw

• new scheme must demonstrably reduce the

administrative burden and associated costs

• still rights to review legal proceedings &

advocacy

• may be defined group who will receive

additional oversight

• no AMCP scrutiny in every case as not

proportionate or affordable

@BJhealthlaw

• new scheme should focus solely on

ensuring that those deprived of their

liberty have appropriate and proportionate

safeguards, and should not seek to go as

widely as the protective care scheme

@BJhealthlaw

• deprivation of liberty will still be the

trigger

• responsibility will be with commissioner

– both for the trigger and authorising

• one size fits all

@BJhealthlaw

• amends to MHA dropped

• Coroners & Justice Act amends re

inquests remains

• tribunals – no final decision

• previous terminology controversial

• LC requests suggestions to replace DoLS

• favourites: “liberty safeguards” or

“capacity safeguards”

• Olivia.Bird@lawcommission.gsi.gov.uk for

further suggestions

@BJhealthlaw

• this is not the cavalry!

• a DoL still needs DoLS or COP for now

@BJhealthlaw

• the pilot will commence on 1 September

2016

• 3 pathways for CoP proceedings

• pilot is to expected to run for 12 months

– property and affairs

– health and welfare

– hybrid for elements of property and

health

@BJhealthlaw

• obligation on applicants to provide

improved analysis of the issues at the

start of the case

• more robust case management decisions

• encourage early resolution of cases

• reduce the number and length of hearings

@BJhealthlaw

• came into effect June 2016- published for

information only

• applies to orders made under s.49 MCA by

the CoP of its own motion and orders

sought by parties

@BJhealthlaw

• requirement that where possible a party

seeking a s.49 report from a NHS body or

LA to have made contact prior to the

application to identify an appropriate

person

@BJhealthlaw

• 4 local authorities (Liverpool,

Nottinghamshire, London Borough of

Richmond and Shropshire) have issued a

judicial review against the Secretary of

State for Health for the ongoing failure to

provide full or adequate funding for the

DoL regime following Cheshire West

• watch this space…

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

rebecca.fitzpatrick@brownejacobson.com | 0161 300 8050