
The final say
News
Must read

Families refusing access to support
Features


Producing robust capacity assessments and the approaches to assessing capacity

Disability discrimination and proportionality in housing management

Cross-border deprivation of liberty

Dealing with unexplained deaths and inquests

Court of Protection case update: May 2025
Sponsored articles
What is the role of the National Trading Standards Estate & Letting Agency Team in assisting enforcement authorities?
Webinars
Is Omeprazole the new EDS?
More features

Provision of same-sex intimate care
Court of Protection case update: April 2025
High Court guidance on Article 3 engagement in care at home cases
‘Stitch’, capacity and complexity
Issuing proceedings in best interests cases
Court of Protection case law update: March 2025
The Health and Social Care (Wales) Bill Series – Regulation and Inspection of Social Care
The Health and Social Care (Wales) Bill Series – Direct Payments for NHS Continuing Healthcare
What is the right approach to Care Act assessments?
Disabled people in immigration bail: the duties of the Home Office and local authorities
Capacity, insight and professional cultures
Court of Protection update: February 2025
Setting care home fees
Could this be the end for local authority-provided residential care?
“On a DoLS”
It’s all about the care plan
Court of Protection case update: January 2025
Mental capacity and expert evidence
Best interests, wishes and feelings
Capacity, sexual relations and public protection – another go-round before the Court of Appeal
Court of Protection Update - December 2024
Fluctuating capacity, the “longitudinal approach” and practical dilemmas
Capacity and civil proceedings
Recovering adult social care charges via insolvency administration orders
Court of Protection case update: October 2024
Communication with protected parties in legal proceedings
The way forward for CQC – something old, something new….
The Ombudsman, DoLS and triaging – asking the impossible?
Outsourcing and the Human Rights Act 1998 – the consequences
Commissioning care and support in Wales: new code of practice
The cost of getting it wrong
- Details
A recent High Court judgement sends a powerful message about the need to adhere to the Mental Capacity Act and to provide staff with adequate training, write Alex Ruck Keene and Victoria Butler-Cole.
The long-running case of G v E [2010] EWHC 3385 (Fam) continues, this time with a decision by Baker J concerning costs. After the naming and shaming of Manchester City Council in a previous hearing, it will come as no surprise that the Council was made the subject of a costs order in favour of the Official Solicitor, G, and E’s carer, F.
The hearing concerned the costs of the initial phases of the proceedings, up until the point at which G was returned to F’s care by order of the court. In deciding to depart from the general rule in welfare applications that there should be no order as to costs, Baker J observed that “local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made...The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got [difficult] judgments wrong.”
However, in the present case, there had been a “blatant disregard of the processes of the MCA and their obligation to respect E’s rights under the ECHR” which amounted to misconduct sufficient to justify imposing a costs order.
Baker J rejected the Council’s reliance on the ignorance of its staff, stating that notwithstanding the complexity of the MCA and the Deprivation of Liberty Safeguards (DOLS), “Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions.”
Importantly, Baker J confirmed that: “If a local authority is uncertain whether its proposed actions amount to a deprivation of liberty, it must apply to the Court.”
The same applies where not only staff but also assessors under the DOLS regime conclude that there is no deprivation of liberty but where doubt or disagreement remains.
The Council was duly ordered to pay the costs of G, F and the Official Solicitor, and for part of the time period in question on an indemnity basis.
Comment
Perhaps the only mildly surprising element of the judgment was the imposition of costs on an indemnity basis for a period of time; in light of his previous findings as to the conduct of the Council, though, such an approach was, perhaps, all but inevitable. The judgment does provide a salutary lesson in the importance both of adherence to the statutory provisions of the Act and also of adequate training.
Passing reference is made to the problem which the authors know has arisen in numerous other cases, caused by the operation of the statutory charge in respect of publicly funded litigants. Baker J expressed the view that it could not be a proper reading of the relevant legislation that a litigant might have to use his damages to pay the statutory charge in a case where not all of his costs were recovered from the other side, but he heard no argument on the issue and the issue remains.
Alex Ruck Keene and Victoria Butler-Cole are barristers at 39 Essex Street (www.39essex.co.uk).
People in criminal justice system to have better access to mental health services
- Details
People in contact with the criminal justice system will have improved access to mental health services by 2014, the government has promised as it unveiled its mental health strategy.
The No health without mental health strategy is intended to tackle the underlying causes of mental ill-health. It includes the provision of around £400m to improve access to modern psychological therapies over the next four years.
This additional investment will help offer personalised support to 3.2m people across the country, the government said. It will also see one million people recover from their condition by 2014 and 75,000 people get their lives back on track by returning to work, education, training or volunteering.
The cross-government strategy has six key aims to be achieved over the next three years:
- “more people will have good mental health
- more people with mental health problems will recover
- more people with mental health problems will have good physical health
- more people with mental health problems will have a positive experience of care and support
- fewer people will suffer avoidable harm, and
- fewer people will experience stigma and discrimination.”
Deputy Prime Minister Nick Clegg said: “The evidence is clear: mental health needs to be addressed with the same urgency as physical health. We need to end the stigma attached to mental illness, to set an example by talking about the issue openly and candidly and ensure everyone can access the support and information they need.
“The strategy today shows how we will put people at the heart of everything we do, from a new focus on early intervention to increased funding for psychological therapy, so that everyone has a fair opportunity to get their lives back on track.”
Care Services Minister Paul Burstow suggested that mental health had for too long been the poor relation in the NHS. “Yet we know that good mental health and resilience are fundamental to our physical health, our relationships, our education, our work and to achieving our potential,” he said.
“What this strategy does is ensure that modern, evidence-based therapies are available for all who need them. Working with others, the government is determined to promote good mental health and wellbeing and challenge the stigma and discrimination that still affects so many people with mental health problems today.
One of the key elements of the government’s strategy is to bring together – through the Early Intervention Grant – funding (£2.2bn in 2011-12) for early intervention and preventative services for children, young people and families. This can also be used for Targeted Mental Health in Schools (TaMHS).
“Local authorities will have greater freedom and flexibility to put in place programmes that can reduce conduct disorder, improve family relationships and reduce costs to social care, youth justice, education and health systems,” the government said.
This coincides with the establishment of community budgets in 16 local areas for families with complex needs, including mental health problems.
Other notable initiatives in the strategy include:
- Launching the Health Visitors Implementation plan following its announcement last October for 4,200 additional health visitors
- Providing additional investment of up to £7.2m for the treatment of veterans with mental health problems
- Working in partnership with the Time to Change programme to challenge stigma and discrimination
- Ensuring that all psychological therapy sites have an employment co-ordinator whose role is to help get people back to work
- Launching a consultation to extend to all employees the right to request flexible working, which the government believes could help carers manage their caring role alongside work, and
- Publishing a new cross-Government suicide prevention strategy in the spring of 2011.
London Councils says grants budget "still stands" despite JR blow
- Details
London Councils has insisted that the proposed budget for its grants scheme for 2011/12 “still stands” even though a High Court ruling this week means the group will have to re-run the consultation process over its planned cuts.
A London Councils spokeswoman said: “Following the result of the judicial review, the London Councils grants budget agreed by London borough leaders in December still stands.
“The judge found against the claimants on most of their grounds of challenge but has asked us to do further work on equalities in the context of the agreed budget. We are in the process of assessing the best way of taking this forward.”
Mr Justice Calvert-Smith declared that a decision by the leaders’ committee of London Councils on 14 December 2010 adopting a categorisation of currently commissioned services and deciding on the timing of proposed changes and transitional arrangements in respect of the scheme was unlawful.
London Councils had reached its decision without due regard to its statutory equalities duties under the Race Relations Act 1976, the Sex Discrimination Act 1976 and the Disability Discrimination Act 1995, the judge said.
The group was ordered to undertake a lawful process of reconsideration, in accordance with these public sector equality duties and – if it comes into force during the reconsideration process – the replacement public sector equality duty under s.149 of the Equality Act 2010.
Louise Whitfield, associate solicitor at Pierce Glynn, solicitors to the claimants, said the judge’s ruling meant that the whole process must be re-run.
“London Councils has to re-think the whole thing and once that is concluded, give anyone who is losing their funding three months’ notice from that point,” she added.
The grants scheme’s budget for 2011/12, put forward by the leaders’ committee and approved by over two-thirds of boroughs, was set at £17.8m, down from £26m. The budget is also likely to fall substantially further for 2012/13.
London Councils is understood to be urgently analysing the time and cost of the extra work it will now have to undertake following the High Court ruling. The group hopes to fund this work as far as possible through the scheme’s 2010/11 and 2011/12 budgets as well as reserves.
Philip Hoult
High Court quashes London Councils plan to cut £10m from grants scheme
- Details
A High Court judge has today quashed a decision by London Councils to cut £10m from its £26.4m grants scheme to voluntary organisations in the capital.
Mr Justice Calvert-Smith ruled that the group’s consultation process was flawed and that they had not met their statutory equality duties. He ordered the group to re-run its consultation process with full equality impact assessments.
The judicial review proceedings were brought by service users of two of the organisations affected by London Councils’ proposed cuts.
Louise Whitfield, a solicitor at law firm Pierce Glynn who acted for the claimants, said: “This case establishes that even in the current economic climate, it remains of paramount importance that public sector funding cut decisions are properly assessed for their gender, disability and race equality impacts. If they are not, public sector funding cut decisions will be unlawful.”
Whitfield said London Councils’ proposed cuts would have affected more than 200 voluntary and community sector organisations in London, and tens of thousands of Londoners.
A spokesman for London Councils said the group would not be commenting until the judicial review hearing comes to a conclusion, which is expected to be on Tuesday 1 February.
Philip Hoult
Kent care home consultation process referred to Audit Commission by scrutiny committee
- Details
The consultation process that preceded a care home closure programme by Kent County Council is to be investigated by the Audit Commission after being referred by the council's scrutiny commission.
The chairman of the council's cabinet scrutiny committee, Trudy Dean, said that she had concerns over the way that alternative proposals put forward by opponents of the plans were assessed by the council and the lack of financial information provided to members ahead of the decision.
Mrs Dean, a Liberal Democrat councillor, told local paper News Shopper: “I’m concerned by the lack of information members had regarding finances behind the proposal, and the lack of information given to people who were consulted. It leads me to consider whether the consultation was wholly honest.”
She said that the panel which evaluated alternative proposals put forward during the consultation process consisted entirely of adult social services staff, meaning that counter-proposals were “very unlikely” to be successful. “It would have been very difficult for them to assess it independently as they all have a personal interest because they were involved with the original plans,” she said.
Kent County Council said it was confident its 19-week consultation had been well-run and that it would co-operate with the Audit Commission.
High Court to hear London Councils grant scheme JR this week
- Details
A High Court hearing into the decision by the London Councils group to cut its £26.4m grants scheme by as much as 80% is to take place this Thursday.
The claimants – service users of two of the organisations affected, the Roma Support Group and the nia project – are being advised by law firm Pierce Glynn on the judicial review proceedings.
They have previously argued that the process involved in cutting the budget was “unfair” and the timetable “so tight that they had no option to involve the High Court”.
There were also concerns that London Councils had failed to consider equality issues carefully.
In November the claimants’ solicitor Louise Whitfield said: “The grants scheme was specifically set up to provide London-wide services to the most vulnerable groups that would not or could not be provided by individual boroughs.
"The services used by my clients are educational support for Roma children and a specialist refuge for women fleeing domestic violence with funding for both projects meant to continue to 2012. However, London Councils have made a preliminary assessment that these services are ‘local’ and indicated that their funding may be cut as early as March 2011.”
The two organisations would face “extraordinary difficulty” in securing alternative sources in the three months’ notice given by London Councils of the potential cut in funding, she added.
Page 257 of 272