20 March 2020: Covid 19 - new working arrangements for Butler and Co
We hope that the new arrangements will have minimal impact on our day to day work. All telephone and email enquiries will continue to be dealt with as usual and all post will be checked on a daily basis.
We shall continue to deliver our services in the areas of mental health law and Court of Protection law in the normal way, although this is, of course, subject to any relevant guidance issued by government departments.
If you have any specific enquiries regarding the arrangements, please do not hesitate to contact us. For mental health law matters, the best point of contact is Chris Heery, the head of our mental health law team (email@example.com), for Court of Protection matters, you should contact Catrin Blake, the head of our COP team (firstname.lastname@example.org), and for more general enquiries, you should contact our practice manager, Frances Grice (email@example.com).
Children's mental health crisis hits A and E departments
The number of children attending A&E departments for psychiatric conditions has more than doubled in the past four years, recent figures show.
According to official data, the number of attendances of children with mental illnesses at A&E is up 8% to 18,673 in 2014-15, compared with 17,278 the previous year. That is double the 9,328 total of 2010-11. The number then being admitted to hospital wards has also gone up: in 2014-15 there were 12,309 admissions of under-18s in which the primary diagnosis was “mental and behavioural disorders”, against 12,126 the previous year.
Mental health experts say the main cause for the rise is an absence of out-of-hours community care for vulnerable under-18s, with children being advised to attend A&E after 5pm. A recent YoungMinds investigation found that more than half the councils in England had cut or frozen budgets for child and adolescent mental health between 2010-11 and 2014-15.
Parents encouraged to talk to their children about mental health
The survey, conducted by Opinion Matters on behalf of Time to Change, found that of the 55% of parents who have not ever raised the topic of mental health – including wellbeing, stress, anxiety and depression – with their child, 20% said they chose not to because they would not know what to say.
One in ten young people will experience a mental health problem, yet 45% of the parents surveyed said the main reason they had not had a conversation about mental health with their children was because it is not something that they feel they need to discuss.
Cameron pledges extra cash for mental health services
New mothers and teenagers with eating disorders would be among those to benefit from £1bn extra cash that was allocated in the Autumn Statement, he said in a speech at the charity Family Action in north London on 11 January 2016.
Calling for a “more mature” conversation about mental health, Cameron said that more psychiatric support will also be made available in hospital A&E departments and for community services.
The specific measures, which will apply in England only, include:
£290m up to 2020 to give 30,000 more women each year access to specialist mental health care before and after giving birth, including through classes;
£247m over the next five years to provide every hospital with mental services in their A&E unit;
a new waiting time target for teenagers with eating disorders, which will track the number of patients being seen within a month of being referred;
a target that at least half of people experiencing psychosis for the first time should be treated within two weeks.
LPA form transition period ended
On 1 July 2015, the Office of the Public Guardian (OPG) introduced simpler and clearer LPA forms for both property and financial affairs LPAs and health and welfare LPAs.
Old and new versions of LPA forms were accepted last year but, as of 1 January 2016, the new forms must be used: those using old forms will not be able to register them.
Similarly, LPA applications made on the LPA digital service before 1 July 2015 will as of 1 January 2016 be deleted and the application process will need to be started again.
The OPG is not changing enduring power of attorney (EPA) forms at present.
Deprivation of Liberty Safeguards applications rise tenfold
The Health & Social Care Information Centre’s “Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2014-15” provide the first annual official statistics since the Supreme Court’s March 2014 judgment in P v Cheshire West and Chester Council and P&Q v Surrey County Council, which clarified an “acid test” for what constitutes a deprivation of liberty.
Throwing out previous judgements that had defined deprivation of liberty more restrictively, the Supreme Court ruled that anyone who lacks the capacity to make decisions about their care and residence and, under the responsibility of the state, are subject to continuous supervision and control and lack the option to leave their care setting are deprived of their liberty.
There were 122,775 individuals with an active DoLS application in 2014-15. People can have multiple DoLS applications made on their behalf in a year and 12,005 individuals had at least two DoLS applications in 2014-15
Steep rise in Mental Health Act detentions
The 9.8 per cent rise during 2014/15 compares to a 5.5 per cent rise during 2013/14 and a 3.7 per cent rise during 2012/13.
The HSCIC report – Inpatients formally detained in hospitals under the Mental Health Act 1983, and patients subject to supervised community treatment, England 2014/15 – looks at detentions under MHA 1983, which outlines how and when a person can be detained in hospital without consent for assessment and/or treatment.
The report also shows that during 2014/15 detentions in NHS hospitals increased by 4,000 (8.2 per cent) from the year before to reach 51,970 and in independent sector hospitals by 1,270 (24.6 per cent) to 6,430.
The occasions where s 136 of MHA 1983 was used to make a short-term detention to a hospital as a “place of safety” increased by 2,400 (or 14.1 per cent) to 19,400, compared to the year before.
Landmark Deprivation of Liberty case
The case has been said by some to be one of the most serious deprivation of liberty cases with which the Court of Protection has had to deal. The proceedings arose because of the Council’s decision to prevent P from leaving respite care and returning to live with her family. In pursuing this course, the Council was held by the Court of Protection to have unlawfully deprived P of her liberty for a period of fourteen months.
P had been kept in respite care by the Council following the discovery of bruising on her chest. In deciding to detain P in this way, the Council relied on unsubstantiated allegations that the bruising had been caused within the home environment. Significantly, however, the Council did not take account of several other possible explanations for the cause of the bruising, not least the fact that P had been observed hitting herself in that area and that she had also taken a member of staff to ground whilst out on a school trip. Crucially also, P herself was not given the opportunity to explain how the bruising had occurred.
Staff from the Council who assessed the bruising at the time under the Council’s safeguarding framework failed to properly investigate the evidence and failed also to disclose to assessing medics that P may have sustained the bruising for a variety of reasons other than abuse.
P’s mother, M, was a party to the proceedings and maintained throughout that the bruising had not been caused at home. Her account was supported by the evidence. M also maintained that the respite care into which the Council moved P was entirely unsuitable for her needs.
In delivering his judgement that the Council had unlawfully deprived P of her liberty, His Honour Judge Marston criticised the Council for its systemic failure, its corporate failings and its misguided philosophies. The Council continued to pursue an unsubstantiated case against the family, and unreasonably refused to drop allegations made against them.
His Honour Judge Marston also agreed with M that the initial respite placement was inappropriate for someone with P’s needs and that this would have been “stunningly obvious” to those involved. Fourteen months after she was prevented from doing so, P has finally returned home to live with M, and a claim for damages is now being pursued on behalf of both P and M.
M was represented in the proceedings by Catrin Blake from Butler and Co solicitors, a Taunton based firm specialising in representing patients and families in Court of Protection proceedings. M was also represented by Mr Kevin Farquharson and Ms Claire Wills-Goldingham QC of Albion Chambers, Bristol.
A crucial feature of the case was that M had not been advised by the Council’s social workers, as she should have been, that she herself had the right to go to the Court of Protection to challenge the Council’s decision. It was not therefore until the Council brought separate proceedings some months later that M was prompted to obtain legal advice. The case highlights a clear lack of understanding on the part of the Council into this crucial area of law and procedure, a lack of understanding which led to a vulnerable adult being deprived of her liberty and separated from her family.
As importantly perhaps, the case also acts as a reminder to all those involved in the care of vulnerable adults that they should seek specialist legal advice when issues such as this arise. Legal aid is often available to cover advice and representation in such cases.
The full judgment can be seen here.
Somerset v MK : Somerset Social Services face landmark penalty for depriving daughter of home life for over a year - judgment sends a strong warning
Judgment issued: 23 September
The anonymity of the person with a disability and any members of her family must be strictly preserved. Failure to do so will be a contempt of court.
Imagine returning from holiday to be told that your daughter, who had been in local authority-run respite care, is not allowed to return home with you. You might imagine that the County Council would have a system which would allow you to appeal such a decision by the social care team, and if it was found that they had made a mistake then your daughter would be able to return home promptly.
Sadly, this was not the case for one family in Somerset. Their eighteen year old daughter, who has severe autism and learning disability, was unlawfully deprived of her liberty by the County Council for thirteen months in one of the most serious cases of its kind in the UK.
The mother, father and grandmother were forced to do battle with the local authority care system for over a year between May 2013 and June 2014, before their daughter was returned home.
Catrin Blake, a solicitor specialising in mental health and Court of Protection law, with Butler & Co Solicitors in Taunton represented the mother.
“We sought to persuade the court that the local authority had acted unreasonably in its conduct of the proceedings and that consequently, there should be a departure from the normal position with regards costs. The usual position in court of protection proceedings is that no party will be liable to pay the costs of another. There are however exceptions to that rule and we successfully argued that this case was one of those exceptions. They way in which the local authority insisted on continuing to seek findings against the family or claim that the family could not meet MK’s needs, despite evidence to the contrary meant that we were able to argue that they had acted unreasonable. Consequently, His Honour Judge Marston made an order requiring the local authority to pay our costs.“
Catrin outlines the facts of the case and the lessons to be learned from today’s judgment by His Honour Judge Nicholas Marston
Lessons to be learned – for families
“Parents and family members must not be afraid to challenge what is said by social workers,” says Catrin. “The adult social care system is incredibly stretched and mistakes do happen from time to time. A crucial feature of this case was that the council’s social workers failed to follow the correct legal procedure, and they did not inform the mother that she had a right to go to the Court of Protection to challenge the Council’s decision.
Consequently, it was not until the council brought separate legal proceedings some months later that the mother was prompted to obtain legal advice.
Catrin advises “Anyone who believes that a vulnerable person is being retained in care unlawfully, should seek advice from a solicitor who specialises in Court of Protection law. Legal aid is often available to cover advice and representation in such cases.”
Lessons to be learned – for local authorities
“This case has been described as one of the most serious cases of deprivation of liberty that the Court of Protection has had to deal with. Legal costs are not usually awarded in Court of Protection cases, and even less frequently on an indemnity basis where costs need only have been reasonably incurred and need not be proportionate. His Honour Judge Marston’s decision to award costs, on an indemnity basis, for this complex and lengthy case, is a landmark decision which has a punitive impact on the Local Authority following what was described as a “significant degree of unreasonableness” on their part. It will no doubt send a strong message to other councils not to repeat such a mistake.”
“The case highlights a clear lack of understanding on the part of the council into this crucial area of law and procedure, a lack of understanding which led to a vulnerable adult being deprived of her liberty and separated from her family.”
“Local authorities need to invest in better training and monitoring for their staff. Since the Cheshire West case, this has become a fast-moving area of law and staff in social services and legal teams need to keep up-to-date with developments on a regular basis.”
Background to the case
In a judgment published in September 2014 by His Honour Judge Marston, Somerset County Council was found to have unlawfully deprived P of her liberty for a period of thirteen months, In May 2013, P’s mother went on holiday for two weeks, leaving her daughter in respite care funded by Somerset County Council.
The council decided to keep P in respite care following the discovery of bruising on her chest. In making this decision, the council relied on unsubstantiated allegations that the bruising had been caused within the home environment. They failed to take account of several other possible explanations, not least the fact that P had been observed hitting herself and that she had also taken a member of staff to ground whilst out on a school trip. Crucially, P herself was not given the opportunity to explain how the bruising had occurred
It was established that staff failed to properly investigate the evidence or communicate all the facts to the assessing medical staff.
The council had not put in place any procedure for the authorisation of Deprivation of Liberty – consequently there was no framework in place within which the mother could appeal to have her daughter returned when she returned from holiday. The mother was not informed that she could have appealed directly to the Court of Protection.
As a consequence, the mother was unable to mount a legal challenge and was not at that time eligible for legal aid. Butler & Co solicitors supported the mother on a pro bono basis through this difficult time. Eventually, after more than six months, in December 2013 the County Council brought court proceedings and the mother was finally, following a further application to the Court, able to apply for non means tested legal aid. During the court case, the mother successfully challenged the claim that that the bruising had been caused at home.
The mother was also concerned that the respite care accommodation into which the council had moved P was entirely unsuitable for her complex needs. His Honour Judge Marston agreed the placement was inappropriate for someone with P’s needs and that this would have been “stunningly obvious” to those involved.
In delivering his judgment that the council had unlawfully deprived P of her liberty, His Honour Judge Marston criticised the council for its systemic failure; corporate failings and its misguided philosophies. The council continued to pursue an unsubstantiated case against the family, and unreasonably refused to drop allegations made against them.
Thirteen months after she was prevented from doing so, P finally returned home to live with her mother in June 2014.
Solicitors raised £1,300 on 24 hour run for Mind Taunton and West Somerset
Catrin and Christopher, alongside six members of their team, took it in turns to run the 2.5km course through the Somerset countryside for 24 hours without stopping. In total they ran 94 laps between them – that is an astonishing 156.04 miles!
It was hard work, but the team were blessed with great weather on the day and fantastic support by the volunteers who helped with the event.
The money raised will go to Mind Taunton and West Somerset, who promote good mental health and encourage a greater understanding of mental health issues. They also provide invaluable support and advice for the local community who are affected by mental health problems
Christopher says ‘Butler & Co are strong supporters of Mind and the wonderful support they provide local people with mental health needs. Their staff and volunteers rely upon people’s donations to ensure they can continue providing this vital service to the community. That is why we to want thank everyone who so generously donated.’
Find out more about Mind Taunton and West Somerset by visiting their website www.mindtws.org.uk