Local Government - July 2009

Mental Heath Update

In this update we reproduce three articles by David Hewitt, a partner at Weightmans. They previously appeared in the Journal of Integrated Care, the Journal of Adult Protection and Mental Health Today.

Not just in the mental capacity act : using the law to protect vulnerable adults

Introduction

Vulnerable adults have recently gained greater protection. A lot of attention has focused on the effect of the Mental Capacity Act 2005 (MCA) and the Safeguarding Vulnerable Groups Act 2006, but many significant provisions can be found elsewhere. It may be that those provisions, and the possibilities they introduce, are not fully understood by those who could make the best use of them. That would be unfortunate.

Where it enjoys powers for adult protection purposes, a public authority might have to explain any failure to use them, particularly where that failure has unfortunate consequences. And in a recent decision, the House of Lords seems to have created a brand new obligation.

This article does not deal directly with the law on adult social care. Nor even, in general terms, does it describe the law relating to the safeguarding of vulnerable adults. It does, however, discuss some of the more significant adult protection provisions and in the process, refers to the No secrets guidance, which was published in 2000 and remains the chief resource for adult protection work. That document is, of course, now being reviewed.

Before doing that, however, we will consider two key questions of definition.

What is abuse?

It seems that vulnerable adults face many threats. According to No Secrets:

“Abuse may consist of a single act or repeated acts. It may be physical, verbal or psychological. It may be an act of neglect or an omission to act, or it may occur when a vulnerable person is persuaded to enter into a financial or sexual transaction to which he or she has not consented or cannot consent.”

Like abuse itself, the means by which it can be addressed are manifold. They may be found in a wide range of statutes, some of which are well know and some not. Those are not, however, the only means to that end. As the Law Commission notes, “it is likely that the provision of appropriate care packages may, except in the most serious cases, help to minimise the risk of abuse or neglect.”

What is vulnerable?

It is, of course, the ‘vulnerable’ that must be protected from abuse, but who are they?

The notion precedes the adult protection guidance. It is a feature, for example, of the special measures available to certain witnesses in criminal proceedings (Youth Justice and Criminal Evidence Act 1999, s 16) and also appears in the Care Standards Act 2000.

In No secrets, a vulnerable adult is defined as:

“a person aged 18 or over who is or who may be in need of community care services by reason of mental or other disability, age or illness; and who is or who may be unable to take care of himself or herself, or unable to protect himself or herself against significant harm or exploitation.”

The consultation on No secrets concedes, however: “There is a broad belief that the definition does need revision, but no clear agreement on how this revision may take place.” And the Law Commission has said it wants to look at the whole notion of vulnerability.

The government believes any new definition should: “clarify what ‘wrongs’ we want the new No secrets to put right, [in other words] to define what is abuse”; and “define how bad the ‘wrong’ has to be to warrant a response, [in other words] to define the threshold needed to justify a response.”

It remains to be seen what the review process will yield, and which notion the government will adopt. But its task is even more important than the consultation document suggests. This is not just an arcane dispute about nomenclature; as we shall see, it might actually determine whether an adult gets to be protected at all, and not just under statute.

The Mental Capacity Act

The MCA came into effect in October 2007, and since then, the possibility that it might be used for adult protection has been considered at some length. That is understandable, for the MCA provides a detailed legal framework, within which all kinds of treatment and care can be provided to incapable adults. The MCA offers clear guiding principles and unequivocal protection for professionals and carers who follow the rules.

Crucially, any intervention on behalf of an incapable adult must be in his or her best interests. Many people now have access to an Independent Mental Capacity Advocate (IMCA). Although there is no automatic right to an IMCA in adult protection cases, they in fact account for the second-highest usage of the scheme. And the new Court of Protection has the power to make all kinds of decisions about incapable people, their welfare, property and affairs.

There are, however, problems with the MCA: it only protects people who are incapable, so those who are capable will fall outside its embrace, even if they are truly vulnerable. And there is a host of decisions for which it cannot be used, such as those about marriage or civil partnership, cohabitation or contact, and divorce, adoption and sexual relationships. (MCA, ss 27-29.) In some circumstances, the MCA can even be used to deprive an incapable person of liberty, either in a NHS hospital or in a registered care home. (MCA, Sched A1.)

It is clear, therefore, that if we require a comprehensive legal framework for safeguarding vulnerable adults, we will not find it in the MCA alone. What else, then, does the law have to offer?

Physical abuse

There is one MCA provision that does provide direct assistance in adult protection work. Section 44 of the Act is aimed at anyone who ‘has care’ of a person who lacks capacity, or who is the attorney of such a person under a Lasting Power of Attorney (LPA) or was appointed his or her deputy by the Court of Protection. It came into force on 1 April 2007 and makes it an offence to ill-treat or wilfully neglect the person concerned, on pain of up to five years’ imprisonment.

This offence is similar to the ones in section 127 of the Mental Health Act 1983 (MHA), which also cover ill-treatment or neglect and are aimed at anyone with custody or care of a person with mental disorder or the employee or manager of premises in which such a person is accommodated. As a result of amendments made by the Mental Health Act 2007, the maximum penalty for those offences is also five years’ imprisonment.

More generally, of course, the common law punishes murder and manslaughter, and statute law, common assault and assault occasioning either actual bodily harm or grievous bodily harm. (Offences Against the Person Act 1861, ss 39, 47 and 18 & 20.) And since April 2005, the criminal courts, when considering sentence, have been required to treat as an aggravating factor hostility based on, amongst other things, the victim’s disability or perceived disability. (Criminal Justice Act 2003, s 146.)

There is also a substantive offence that may be used in some cases of adult abuse. Since 21 March 2005, it has been an offence to cause or allow the death of a child or a vulnerable adult. (Domestic Violence, Crime and Victims Act 2004, s 5.) A ‘vulnerable adult’ is defined as “a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.”

This offence is intended to overcome the problem of proving which of two perpetrators committed the offending act(s), when each blames the other and the evidence is inconclusive. The offence, the maximum penalty for which is 14 years’ imprisonment, will be committed if:

• an alleged perpetrator lived in the same household and had frequent contact with the victim;
• there was significant risk of serious physical harm and the alleged perpetrator either caused the victim’s death, or was or ought to have been aware of the risk and failed to take steps to protect the victim; and
• the act occurred in circumstances that the alleged perpetrator foresaw or ought to have foreseen. (Ibid, s 5(1))

Sexual abuse

Where a person is involved in sexual activity to which he or she does not nor cannot consent, offences such as rape and sexual assault will apply as they would to anyone else. Where a person’s choice about sexual contact is impeded by mental disorder, however, the law contains a number of specific offences. They are set out in sections 30-44 of the Sexual Offences Act 2003 (SOA) and apply to sexual contact with someone who:

• has a mental disorder that impedes his or her choice;
• agreed to the contact but has a mental disorder that makes him or her vulnerable to inducements, threats or deception; or
• was in a relationship of care with the other party (or parties).

The SOA says ‘mental disorder’ has the meaning given by section 1 of the MHA, (SOA, s 79(6)) which official guidance says includes ‘learning disability’. That remains the case, even though the definition has subsequently been amended.

The amended definition of ‘mental disorder’ is “any disorder or disability of the mind”, and of ‘learning disability’, “a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning”. (MHA, s 1 (2)) The amended MHA says that a person with learning disability is not to be considered to be suffering from mental disorder “unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his behalf”. (MHA, s 1(2A)) But this provision, which would limit the protection afforded by the SOA, only applies for the purposes of detention and treatment under the MHA. Elsewhere, the unfettered definition of mental disorder will apply and, consequently, the SOA will cover a wider range of people.

Financial abuse

Whatever safeguards the MCA offers, protection against financial crime is not one of them. It seems the government thought incapable people would be adequately protected by the existing criminal law, whose offences include theft itself, robbery, burglary, fraud and blackmail. (Theft Act 1968, ss 1, 8, 9, 17 & 21.)

Since 15 January 2007, however, it has been an offence for a person whose position requires him or her to safeguard, or not act against, the financial interests of someone else, to dishonestly abuse that position, with the intention of benefitting him- or herself or others. (Fraud Act 2006, s 4.) This might cover abuse by an attorney under a LPA, for example, or by a welfare benefits appointee.

But it may be that a similar objective can be achieved without recourse to statute law. A person who looks after a vulnerable adult might also be deemed his or her agent. If so, common law requires that person to act in good faith and confidentially; to perform the role with a reasonable standard of care and skill; to keep his or her own money separate and maintain proper accounts; and not to use the position to benefit him- or herself. Any breach of these requirements would, again, be a criminal offence.

Care standards

The current framework of care standards includes a wide range of minimum standards. (Care Standards Act 2000, s 23.) They include a requirement that “service users are safeguarded from physical, financial or material, psychological or sexual abuse, neglect, discriminatory abuse or self harm, inhuman or degrading treatment, through deliberate intent, negligence or ignorance”. Furthermore, where people are in care homes or receive domiciliary care, they are covered by detailed standards on the safeguarding of their money and financial affairs.

The regulator – the Care Quality Commission - may cancel the registration of a care home where a condition has been breached or a relevant offence committed. And if there is a serious risk to a resident’s life, health or well-being, it will be able to seek immediate cancellation.

Self-neglect

There are several well-known tools for dealing with people who, given the opportunity, might neglect themselves. They allow such people to be made subject to restrictions, even in the community, and to have the sanctity of their homes breeched (sometimes, even, without a court order). One of those powers is, however, unclear and, as a result, now somewhat controversial.

Guardianship enables someone with mental disorder to be cared for in the community without the use of more coercive powers. (MHA, ss 7-10.) There is, however, no power to impose medical treatment upon someone who is subject to guardianship, and although he or she may be returned to a place of residence, (MHA, s 18) guardianship carries no power to confine him or her there.

Where someone suffers from mental disorder and is detained in hospital, Supervised Community Treatment now allows a wide range of requirements to be imposed as a condition of his or her discharge. (MHA, ss 17A-G.) Those conditions must, however, be necessary or appropriate for ensuring that the patient receives treatment in the community, preventing risk of harm to his or her own health or safety, or protecting other persons.

Where someone in private premises is reasonably believed to be suffering from mental disorder, a magistrate may issue a warrant, authorising any constable to enter the premises and remove the person to a place of safety. That will be so, however, only if it appears that the person has been, or is being, ill-treated, neglected or kept otherwise than under proper control, or if the person is unable to care for him- or herself and living alone on the premises. (MHA, s 135(1))

It may, however, be lawful for a constable to enter private premises without a warrant, either to save life or limb or prevent serious damage to property, or to arrest someone in order to prevent them causing physical injury to another person or to protect a child or others. (Criminal Law Act 1967, ss 17 & 25.)

Furthermore, local authorities have various powers - including, where appropriate, those of entry or removal - in respect of such things as filthy, unwholesome or verminous premises; filthy or verminous articles, and verminous persons and their clothing. (Public Health Act 1936, ss 83-85.) And in the case of someone thought to be infected or contaminated in a way that presents significant harm to human health, a magistrates court will soon be able to order his or her medical examination and removal to and detention in hospital. (Public Health (Control of Disease) Act 1984, s 45G(1) & (2))

And there is a further power that makes it possible both to enter premises and to remove and detain someone discovered within.

Under section 47 of the National Assistance Act 1948 (NAA), someone in need of care and attention may be removed from his or her home and confined in a more suitable place. Potentially, this power will apply to anyone who is suffering from grave chronic disease or who, being aged, infirm or physically incapacitated, is living in unsanitary conditions. For the power to be used, however, the person must also be unable to give him- or herself proper care and attention, and must not be receiving it from anyone else.

If satisfied that these grounds are made out, and also that it is expedient to do so, a magistrate may make the requisite order. Although the point is to ensure that the person receives “necessary care and attention”, there is no power of compulsion to that effect. A patient subject to a section 47 order may be detained in hospital for up to three months, and then for an unlimited number of further three-month periods. He or she may make application to the magistrates only after six weeks, and they may revoke the order if it appears expedient to do so.

There is scant information about section 47. The Department of Health suggests that some authorities use it “perhaps once or twice a year as a last resort”. (One study found that 91 section 47 orders were made between 1985 and 1986, while another reported 165 orders made between 1988 and 1991. The author of the first study concluded:

“[I]t is surely inappropriate for a piece of legislation drafted in the Town Clerk’s Office in Bradford in 1925 and little changed since then to be used in such a sporadic and unrecorded fashion.”

There is concern that the criteria for its use, together with its purpose and the limited opportunities it presents for judicial challenge, bring the section 47 power into conflict with the European Convention on Human Rights. That possibility has been acknowledged, and even accepted, by the Department of Health. It is perhaps surprising, therefore, that the government should recently have gone to the trouble to amend section 47. The Law Commission says it wants to consider the power as part of its general review of adult social care law.

The High Court

For some time, of course, the High Court offered protection to incapable people, using its ‘inherent jurisdiction’ to decide what treatment they should have or where they should live. With the coming of the MCA, however, much of this work passed to the Court of Protection. What, if any, residual role the High Court has is at present unclear, but the Court has already set about transforming its jurisdiction so as to offer protection to vulnerable adults. (See, for example: G (An Adult) (Mental Capacity: Court’s Jurisdiction) [2004] EWHC 2222; Sunderland CC v PS and CA [2007] EWHC (Fam) 623.)

That task in fact began before the MCA came into effect. In a case in 2005, Mr Justice Munby said:

“The inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real or genuine consent.” (Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam) at [77])

Although initially reluctant to define ‘vulnerable adult’, his Lordship went on to say that,

“In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness, or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenial deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive.”

The court’s powers when exercising the inherent jurisdiction in relation to adults are wide, and can include declaratory relief and the use of injunctions.

But the urge to safeguard vulnerable adults might not be an entirely altruistic one.

Conclusion

A wide variety of safeguarding powers already exist. If some of them are little used, that may be because they are in unfamiliar places. It seems, in fact, that a more systematic approach is to be taken not just to adult protection law, but to the whole of the law concerning adult care services. That is welcome, for in many respects, the existing position is far from clear. And the High Court seems keen to play its part as well. First, however, we will have to decide just whom we wish to protect.

Inadequate, often incomprehensible and outdated : reviewing adult social care law

Introduction

Adult social care law is in urgent need of reform. That, at least, is the conclusion of the Law Commission, which has embarked upon what it hopes will be a review of the whole system. As a first step, the Commission has published a scoping report, summarising the law and the problems with it, and suggesting how some solutions might be found. This article will review some of the report’s main suggestions.

The Commission says that around 2.5 million adults currently receive adult social care services, which it believes include such things as care homes, residential accommodation and day centres, equipment and adaptations, meals and home care, carers’ services and aftercare, and services for disabled children. Of this number, some 43 per cent are older people, 16 per cent have a learning disability, seven per cent are physically disabled and five per cent suffer from mental illness.

It seems there is growing concern about the future demand for – and cost of – care and support. We are told, for example, that:

• between 2002 and 2051, care needs in people aged 65 years and over are expected to rise by 87 per cent;
• by 2028, the number of people aged 85 and over is expected to have risen by more than 60 per cent, compared with a ten per cent rise in the population as a whole;
• between 2002 and 2041, the number of disabled people is expected to double; and
• by 2028, over 1.7 million people are expected to require care and support and there will be a funding gap of over £6bn in adult social care.

In this context, the Commission’s conclusion is a dispiriting one. It says the patchwork of laws that make up adult social care is “inadequate, often incomprehensible and outdated”. The Commission has something specific to say about the consolidation of the law and the integration of services. First, however, it is necessary to consider the scoping report’s discussion of some other, related topics.

Complexity

One problem with adult social care law is apparently its complexity, which means, “it does not provide a clear and principled approach to assessment and service provision”. Instead of a “single, modern statute to which service providers and service users can look to understand whether services can or should be provided, and what kinds of services” there are more than thirty statutes and a plethora of other regulations and guidance, each of which reflects the priorities and prejudices of the era in which it was enacted and some of which overlap or even duplicate each other. In 2001, Lord Justice Scott baker characterised this confusion as follows:

“Community care legislation has grown piecemeal through numerous statutes over the last half century. There are many statutes aimed at different targets whose provisions are drawn in differing language. Each Act contains its own duties and powers. Specific duties have to be distinguished from target or general duties and duties from discretions. Sometimes a local authority has several ways in which it can meet an obligation. Some provisions overlap with others and the inter-relationship is not always easy.” (A v Lambeth LBC [2001] EWHC Admin 376, at [24].)

There are, for example, at least three main statutory provisions placing duties on local authorities to carry out a community care assessment. The Commission notes the words of Lord Justice Dyson, who in a case in 2007 expressed his “dismay at the complexity and labyrinthine nature of the relevant legislation and guidance, as well as (in some respects) its obscurity.” (Crofton v NHS Litigation Authority [2007] EWCA Civ 71, at [110].)

For the Commission, this complexity leads to inefficiency, because “too much time and money are spent on understanding the law and on litigation.” It might also stifle innovation and create “arbitrary differences in legal rights and status between different service users and different kinds of service.”

Outdated concepts

Because many of the statutes that constitute adult social care law were passed a long time ago, they are based on concepts of disability that can seem inappropriate today. The Commission suggests that there is, for example, a presumption in favour of institutional care for disabled and older people, which means that the community powers are much less well defined.

It seems that language too is a problem. The key adult care provision is still the National Assistance Act 1948, but it speaks, in section 29, of “welfare arrangements for blind, deaf, dumb and crippled persons”. And then there is the question of whether medical language may ever be used to determine eligibility for social services. The Commission wonders whether we should ask not “what is wrong with this person?” but “what is wrong for this person?”

Among the other reasons that lead the Commission to its conclusion are the division between health care and social care, and the integration of services.

Health care and social care services

The Law Commission says that the division of health and social care provision – and the law that supports it – dates back to the creation of the NHS, when “the question of what is health and what is social care appeared relatively straightforward”. However, and as Parliament itself has discovered, the position has gradually become less clear:

“In practice the boundary between the two services has shifted over time, so that the long term care responsibilities of the NHS have reduced substantially, and people who in the past would have been cared for in NHS long stay wards are now often accommodated in nursing homes. This means that responsibility for funding long term care has to a major extent been shunted from the NHS to local authorities and individual patients and their families.” (House of Commons Health Committee (2005) para 41.)

This divide is significant, first because NHS services are provided free-of-charge but local authority services are means-tested. This means that the location of the boundary between them might have real financial implications for service users and local authorities alike. Secondly, whereas adult social care legislation includes a number of specific public law duties that individuals can take legal action to enforce, NHS duties tend to be owed towards the population as a whole. (See, for example, R v Cambridgeshire Health Authority, ex parte B [1995] 1 WLR 898.)

And then there is the possibility of a gap between services. Local authorities are forbidden to provide health care that may or must be provided by the NHS. (See, for example: National Assistance Act 1948, sections 21(8) and 29(6); Health and Social Care Act 2001; NHS Act 2006.) As far as health care services are concerned, however, the NHS often enjoys a wide discretion as to whether, and if so how, they should be provided. (See, for example, R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213.) If a NHS body may lawfully decline to provide health care services, and if, because the NHS enjoyed that discretion, a local authority is prohibited from providing such services itself, there might be a gap in provision. This, the Commission notes, would be contrary to the government’s expressed wish.

In any case, the Commission points out that the relevant exclusions apply only to people in residential accommodation and services provided in connection with that accommodation, and to services that must be provided under the NHS Act 2006 (as opposed to those “authorised or required” to be provided in section 21(8) of the National Assistance Act 1948). This, the Commission says, means that where someone living in the community is entitled to NHS Continuing Healthcare, a social services authority may provide “all manner of community care services” to him, including:

• services provided by local authorities under the NHS Act 2006 to prevent people becoming ill;
• many services under section 29 of the National Assistance Act 1948 and section 2 of the Chronically Sick and Disabled Persons Act 1970; and
• services which could as a matter of law be provided either by the NHS or by a local authority, but which as a matter of policy the relevant minister has decided should form part of NHS Continuing Care.

Integration of services

The Law Commission says that in recent years, there has been increasing emphasis on the integration of and joint working between health and social services. There are positive reasons for this, which include the need to simplify processes for assessing and providing services and to avoid duplication. There have also been some high-profile cases that have “provided vivid reminders of the potentially tragic consequences when vulnerable adults fall between health and social services”. Poor working relationships between health services and social care services can be shown to have had a detrimental effect on the provision of learning disabilities services and mental health services.

The Commission suggests that greater joint working has already been achieved by, for example, establishing joint health and social services teams (for example, those specialising in community mental health); developing a Single Assessment Process for older people’s services (under HSC 2002/001 and LAC(2002)1, Guidance on the Single Assessment Process for Older People); using guidance to encourage joint working; and transferring social care staff to NHS primary care trusts under TUPE arrangements.

Also, various strategic provisions have had their effect. They include: the Health and Social Care Act 2001, which enables the creation of Care Trusts; the National Health Service Act 2006, which allows NHS bodies and local authorities to pool their resources, delegate functions and transfer resources to one another and thereby enable a single provider to fulfil both health and local authority functions; and the Local Government and Public Involvement in Health Act 2007, section 106 of which places a duty on a local authority to prepare and submit a Local Area Agreement, and section 116 of which requires joint health and social care assessments of strategic needs.

In addition, statute law has been used to encourage joint working. So, for example, section 117 of the Mental Health Act 1983 imposes a joint duty on health and social services to provide after-care services to certain people who are discharged from hospital having received compulsory treatment for mental disorder. Then there is section 47(3) of the NHS and Community Care Act 1990, which provides that where a community care assessment discloses a possible housing or medical need, the local authority must notify the relevant housing or health authority; and the Carers (Equal Opportunities) Act 2004, which says that when it plans the provision of services to carers and the cared-for person, a local authority must request another body to assist it and that other body must give due consideration to the request. And finally, and more generally, the Commission notes section 82 of the National Health Service Act 2006, which often requires NHS bodies and local authorities to co-operate with one another in order to secure and advance the health and welfare of the people of England and Wales. (The Commission also notes, however, that many of these provisions have been criticised as weak and difficult to enforce.)

Reform

The Law Commission says the legal framework for adult social care should be simplified and made more consistent, more transparent and more modern.

With regard to the divide between health care and social care, the Commission wants to consider “the interface between health and social care services and how this might be expressed in any future consolidated adult social care statute”. This would not be an attempt to extend the remit of the NHS or social services, but “a technical undertaking of examining how best to delineate the statutory boundary between health and social care”.

With regard to the integration of those services, the Commission wonders whether the existing duties to co-operate could be rolled into a single legal provision (which might be based on the existing legal provisions); or whether a general duty to co-operate might be established in adult social care legislation. It also wonders whether any such duty should embrace organisations other than health care providers and social care providers (such as housing authorities and voluntary organisations), and whether there should be remedies or sanctions for breach.

Otherwise, the Law Commission wants to do more work along the following lines:

• Statutory principles. Like the Mental Capacity Act 2005 and, before that, the Children Act 1989, any new, consolidated adult social care statute could include overarching principles to help local authorities, the courts, service users, carers and others carry out their functions or understand their entitlements.
• Community care and carers’ assessments. The Commission wants to consider whether the various assessment duties might be consolidated into a single one.
• Hospital discharge. Where a NHS patient needs community care services if he or she is to be discharged from hospital safely, there will be a further, discrete assessment regime. Again, the Commission wants to consider whether this could be refined or simplified.
• Eligibility for services. Should the current guidance be clarified or refined?
• Ordinary residence. These rules establish which local authority is primarily responsible for a person in need of services, based on his or her residence in the area. The Commission would like to address several concerns, such as what ‘ordinary residence’ means, whether the rules in different statutes can be made more consistent, and whether they add to the difficulties service users and carers face when moving from one area to another.
• Provision of services. The Commission has in its sights the various powers and duties concerning adult social care, which it says are “scattered across a range of statutes and secondary legislation [entitling] similar but not identical groups of clients to similar but not identical services.” Could this regime be consolidated and simplified, for example “by rolling the various duties to provide a particular service into a consolidated provision”?
• Service provision and client groups. Most adult social care statutes require an individual who wants a service to show that he or she fits into a particular class. But those classes are not consistent between the statutes and many overlap with the others. In any case, “the principle definition of disability in community care legislation is generally considered to be offensive and out of date.” Is a definition necessary, and if so, what should it be?
• Direct payments. They allow local authorities to make a payment direct to service users, so that they can themselves purchase the services that will meet their needs. The government is currently consulting on further extending the categories of people who may receive direct payments, but can the framework be refined or simplified?
• Charging for services. Would it be possible – or desirable – to have a single, simplified provision obliging local authorities to recover payments for residential accommodation and giving them a discretion to do so for domiciliary and community care?
• Safeguarding adults. Amongst other things, the Law Commission wants to consider whether the current adult protection framework should be put on a statutory footing; whether, and if so how, the definition of ‘vulnerable adult’ might be changed; whether local authorities should be obliged to investigate suspicions of abuse or neglect; and whether social workers and other professionals need wider powers to enter domestic premises where there are suspicions of abuse. In addition, the Commission proposes to review the power, contained in section 47 of the National Assistance Act 1948, to remove a person from his or her home to a place where he or she can be given the care and attention she needs and is lacking.

Conclusion

The recent adult social care law scoping report is for information purposes only and the Law Commission is not seeking responses at this stage. A consultation paper will be published and a “broad public consultation” undertaken in due course. That shouldn’t, however, discourage service users and service providers from marshalling their arguments in anticipation.

Few will disagree with the report’s central conclusion: adult social care does indeed seem to be in need of urgent reform. Some might wonder, however, whether the Law Commission is best placed to do all the work it now wants to do.

The adult protection framework and the direct payments system are already the subject of government reviews and a turf war would be terribly distracting. And there will surely be little appetite for revisiting the continuing care system so soon after the government published what it hoped was comprehensive guidance.

The NAA power, too, is under review. The Commission correctly reports that there are concerns about whether this power complies with the European Convention on Human Rights. What it doesn’t say, however, is that those concerns have been raised by the government itself. All of which makes it anomalous, perhaps, that (as the Commission also notes) instead of repealing the 1948 Act, the government has recently used the Mental Health Act 2007 to amend it.

And finally, the suggestion that health responsibilities and social care responsibilities might be divided up in a different way is likely to cause concern, not least within the NHS, which is widely thought – not least by the courts - to benefit greatly from the current arrangements

A question of judgement?

Many people who suffer from mental disorder will be disqualified from jury service. In some cases, that could be sensible, but in many others it will be illogical and even offensive. There might, in any case, be a far better way of doing things.

Juries are common in the Crown Court, where they will deal with criminal cases, and can even be used in the High Court, the county courts and coroners’ inquests. The relevant piece of legislation is the Juries Act 1974, which now says that a person suffering from mental disorder is disqualified from sitting as a juror. This covers:

• Anyone who suffers from mental disorder within the meaning of the Mental Health Act 1983 (MHA) and consequently either resides in a hospital “or similar institution” or regularly attends for treatment by a medical practitioner. This exclusion will apply to informal as well as to detained hospital patients, and also to those whose mental health care is provided on an out-patient basis or even by a GP.
• Anyone who is subject to guardianship or to a Community Treatment Order under the MHA.
• Anyone who lacks capacity, within the meaning of the Mental Capacity Act 2005, to act as a juror.

It is said that 750 people are month are barred from jury service on these grounds, and that 12 per cent of people with mental illness have been excluded from jury service at some time in their lives.

When he receives a jury summons, the potential juror must reply to it on a detailed form, which asks him, amongst other things, whether he suffers from mental disorder. If he doesn’t reply, or doesn’t do so properly, he can be fined up to £1,000. The onus is therefore on the individual, but that wasn’t always the case.

Originally, the 1974 Act said simply that if he suffered from mental disorder, the potential juror “shall be entitled, if he so wishes, to be excused from jury service”. This entitlement has become an obligation; where once a juror had the option not to disclose his mental disorder, now, he does not.

This is presumably because a defendant in a criminal trial would not want – and should not be required to be – judged by someone whose own judgement is presumed to be unreliable. The effect, however, is curious: though he might have been fit to help run a country (and a war), Alistair Campbell could have been disqualified from sitting on a jury on account of his recurring depression. The same is true of Stephen Fry, who has fought his own well-publicised battles with bi-polar disorder, and also, it seems, of Winston Churchill, Florence Nightingale, Marie Curie and, topically, Charles Darwin. Jury service, the Government has recently told us, is one of the most significant duties a citizen can perform. If so, it is surely the last of them to be shot through with overt discrimination.

The current prohibition does not distinguish between people who are in the throes of a major psychotic episode and those whose condition is under control or even in remission. It looks simply to the cause, and not to the effects, of a person’s illness. As such, it might be susceptible to legal challenge, although the European Convention on Human Rights – perhaps the natural place to look for support for such a challenge – contains nothing that is of direct assistance.

In fact, the political route to change might be the best one, at least for the time-being. Last year, the Secretary of State for Justice told Parliament that a paper on mental health and jury service would be published shortly, and that it would be followed by a public consultation on the topic. This might be a good time, therefore, for advocates of change to marshal their arguments.

As we have seen, the last ground for disqualification in the 1974 Act is a lack of capacity to act as a juror. It might be argued that this ground in fact contains all the others, especially given the broad definition of incapacity contained in the Mental Capacity Act 2005; and that it should therefore be the only ground to do with his mental state upon someone might be prevented from sitting with, and in judgement of, his peers.

David Hewitt
Partner
Weightmans LLP