Disabled campaigners have warned that a Supreme Court ruling has removed a vital safeguard that protected the lives of brain-damaged patients who have been left unconscious.
The Supreme Court ruled this week that families and doctors will no longer have to seek a court order if they agree to end the life of a patient with a “prolonged disorder of consciousness” (PDOC)* by withdrawing food and fluids.
The court had been hearing the case of a man, Y, who never regained consciousness after a heart attack left him severely brain-damaged and in a permanent vegetative state (PVS).
Y had to be kept alive with water and liquid nutrition, but his family and doctors agreed that it was in his best interests for this to be withdrawn so he could be left to die.
The NHS trust that was treating him sought a declaration from the courts that they could do so without an order from the Court of Protection.
This was granted by the high court, but the official solicitor appealed to the Supreme Court, which this week unanimously dismissed the appeal.
Disabled campaigners have raised grave concerns about the judgment.
Originally posted on finolamoss: The Francis report, identified systemic, organisational, and, individual failings contributed to “the normalisation of cruelty” in the care in Mid Staffordshire NHS Foundation Trust. The 2012/13 Annual Report by Healthwatch England, showed 94% of the public agreed that the NHS, and social services, could be improved. 1 in 3 of public surveyed,…
Experts say the case could soon be talked of as having a similar impact to Cheshire West itself in terms of the role of the state and its obligations to 16- and 17-year-olds
Clarity on the law in relation to deprivation of liberty cannot come soon enough in the light of another landmark case, explains Ben Troke of law firm Browne Jacobson
This is the latest chapter in a story that started last March when, in the Cheshire West judgement, the Supreme Court clarified the definition of a deprivation of liberty as a person being “under continuous supervision and control and not free to leave” the place they were in, regardless of whether this arrangement would be appropriate or ‘normal’ for a person with those particular needs.
This made it obvious that there were tens or hundreds of thousands of people who are deprived of their liberty by the arrangements made by the state for their health and social care who lack capacity to consent to this. Their right to liberty and security under Article 5 of the European Convention on Human Rights rights would be breached unless a due legal process were in place to review and authorise this. Without this, people deprived of liberty unlawfully would have a right to compensation.
Colossal increase in cases
The result was a colossal increase in applications to the Deprivation of Liberty Safeguards (Dols) system, which exists to allow authorisation of a deprivation of liberty in a care home or hospital setting only. But arguably the greater challenge concerned cases in other settings, for example for people with dementia or learning disability in their own homes or supported living who have very intensive care packages likely to amount to being under continuous supervision and control and not being free to leave.
For those cases, outside the scope of Dols, the deprivation of liberty can only be lawfully reviewed and authorised by the Court of Protection. Following Cheshire West, no one knew how many applications to court will have to be made to authorise or review such placements, but it would certainly be tens of thousands.
The onus would on the public body responsible for the situation to bring the case to court – usually the local authority or CCG which commissions the care package that may amount to a deprivation of liberty.
In the light of Cheshire West, the court processes previously in place for handling these cases, geared and resourced to deal with a couple of hundred such cases a year, needed serious rethinking.
Re X
This is what Court of Protection president Sir James Munby was trying to achieve in proceedings, which came to be known as ‘Re X’, in which he pulled together a sample of relevant cases, and convened a hearing in June 2014. At this, many individual parties, as well as representatives from government, local government, the Law Society and other interested parties, addressed him on the kind of process that should be implemented.
In August and October 2014 Sir James Munby published judgments in which he set out his thinking on some of the key procedural and practical issues. He asserted, for example, that it was permissible for a process to review a deprivation of liberty without P (the person deprived) being a party to proceedings, and that while such cases must be reviewed by a judge, rather than a court official, this could be done on the papers, without a hearing, where there was no substantive dispute.
Reflecting these judgments, a new practice direction and Court of Protection form (COPDOL10) were published in November 2014, establishing the ‘Re X’ process along these lines, and a raft of judges around the country have been trained up, ready to deal with the expected flood of cases. There’s also been an amendment to the Court of Protection Rules, due into force on 1 July 2015, which requires the court to consider whether P’s participation can be secured and interests protected in another way, without being a party to proceedings.
The appeal
Two of the individuals in the Re X cases went to the Court of Appeal arguing, among other things, that a process determining their deprivation of liberty without them being a party was not fair and breached their human rights. Others joined the appeal on related issues for a hearing in February 2015.
Each of the individual appellants had in fact been made a party to the proceedings to review their deprivation of liberty, and so had arguably no standing to say that they were adversely affected by the Re X approach. That said, when the court did hear argument about the issue of party status, there was a lot of doubt that the process could be fair if P was not to be joined as a party.
The judgment published this morning includes a fully reasoned contribution from each of the three judges, led by Lady Justice Black. The headlines are that:-
Though sympathetic with the challenges facing Sir James Munby, all three judges were critical of the unorthodox approach taken to deal with the issues (for example, in paragraphs 58, 127 and 146 of the judgement).
However, they concluded that the Court of Appeal had no jurisdiction to overturn the ‘Re X’ process, which should instead be properly challenged by judicial review against the practice direction (paragraph 50).
Crucially, they all said that if they actually did have the jurisdiction to decide this, they would have said that P should be a party to any deprivation of liberty proceedings.
Why P should be a party
On the last point, Lady Justice Black said: “…it is not appropriate in my view for P’s participation in proceedings to turn in any way upon whether he wishes to participate, or indeed on whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slips ups in such a scheme. Article 5 requires greater protection from arbitrariness.
“I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party … [but] given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case.” (paragraphs 103-104)
Lady Justice Gloster said that Sir James Munby’s conclusion that P need not be a party “is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention or the Strasbourg jurisprudence” (paragraph 127). Lord Justice Moore-Bick said essentially the same thing at paragraph 171.
A fatally flawed process
Strictly, the views on the substantive issue of P’s party status is just non-binding as the court had already decided that it didn’t have jurisdiction to decide these issues in this appeal. But there’s no doubt that this leaves the current Re X process in confusion, if not fatally flawed.
There is already grave concern at the relative small take up of the Re X process, with only 200 or so applications made to date nationwide, and this reversal for attempts to streamline the process may not help encourage more engagement.
If P must be a party to any proceedings, with a litigation friend, and all the issues of access to representation and funding which that involves, this will inevitably be a lot less streamlined than Sir James Munby may have hoped, with consequences for delay, costs and the resources and time needed generally to get the huge number of cases through the process.
Law Commission review
Unfortunately, the ‘cavalry’ – the Law Commission proposals for reform of the whole system – is still some distance away. Though its consultation is due out in a few weeks on 7 July 2015, draft legislation is expected to be two years behind that in Summer 2017, and will take some time to implement, even if adopted. Though there may now be even more pressure to accelerate that timescale, with a debate in Parliament scheduled for tomorrow afternoon, it is hard to see any new system being in place sooner than 2018.
In the meantime, and despite the best attempts of some judges to pare back the impact of Cheshire West by finding ways to disapply it in community settings, we have the ongoing problem of widespread unlawful deprivation of liberty, potentially incurring significant liabilities and, for the community settings in particular where Dols cannot be used, the well intentioned attempt to produce a ‘streamlined’ route through the Court of Protection now in some confusion.
Worst of all words
We await any formal response from the Court of Protection or the Ministry of Justice with interest, but this is not just of academic interest. At the frontline we risk being left with the worst of all worlds – with individuals identified as having rights without the practical means for these to be readily implemented, and already stretched public bodies with obligations that cannot practically be met. The cavalry cannot arrive soon enough!
New research by Community Care shows that almost 80% of social workers are thinking of leaving their jobs because of stress. UNISON has growing concerns that one of the contributors to this stress is the pressure surrounding social work in the courts.
Earlier this year, new guidance for the family courts and the court of protection in England and Wales said that judgments will usually be published and expert witnesses named, unless there are compelling reasons not to do so. The aim is to promote transparency and public understanding of the work of the courts.
However, our experience of supporting members named in recent cases has shown the danger of selective media coverage of complex court proceedings. This can cause a backlash against the social workers involved, exposing them to public hostility and media intrusion into their private and family lives.
Such experiences take social workers away from the front line, increase stress and damage health. Once a social worker has been vilified in the media, securing co-operation from families and other agencies may become difficult.
The social workers named are often the least senior and lowest paid staff involved in the decision-making chain. This risks scapegoating them for decisions when the council should instead be taking ownership at a senior level.
UNISON has written raising concerns to the relevant government departments, the Local Government Association (LGA) and WLGA in Wales, and the social services directors’ organisations.
We are issuing guidance for UNISON branches on supporting members in these cases. And we are running a surveyfor social workers asking about experiences of court work and opinions on the likely consequences of naming.
What we are hearing so far suggests the need for a package of measures including:
· More awareness raising and debate within the profession
· Proper risk assessments ahead of court proceedings and applications for anonymity for social workers where there are specific risks
· Ensuring court report writing and evidence are covered to a high standard in training and CPD
· Workload management measures including protected court preparation time and support
· A comprehensive media and social media strategy in every employer to protect social workers
· Health, safety and welfare support measures
· More liaison and engagement between social work services and the judiciary……………..’
Somewhere in all that should be the care for all parties involved the mother, the infant in question and any supporting relatives.
The infant should come first, but who is best to judge what is best. Life can be good, bad, indifferent and many others for any of us. Who knows what the future will be for any of us. But Social Workers are expected to get these situations right every time. In their course of work, they are expected to follow the requirements and rulings of their own Social Services management, while endeavouring to do the best for, in this case, a small child. Their resources are continually being cut and directives may change, but still they are expected to get it right all the time.
But is it right that people should expect the decisions to be right all the time, but is it feasible and reasonable to expect this. They are, after all, only human, but they are dealing with people lives and expectations.
A first step would be to remove the secrecy of the courts and all operations to be transparent.
*Contains public sector information licensed under the Open Government Licence v2.0.
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