Archive for News – Page 2

Attention: care home owners – support for doing the right thing for Covid-19 patients and their families

CASCAIDr’s written a guide about going to hospital, visiting, getting a ventilator and getting out of hospital for people who run care homes and the wider public, for reference and use during the Coronavirus crisis.

We’ve done this because of the concern nationwide that people in care homes are not only getting ill, but also seemingly dying in large numbers in care homes, which can only mean that they’re not getting to hospital even though they can’t all be deteriorating within minutes.

We think that if they’re not getting to hospital, it must be because of fears or decisions being made by desperately ill and possibly dehydrated or feverish or semi-conscious people – or their relatives, a GP, a paramedic, or a care home manager. We are not saying that that’s wrong or always inappropriate, please note!

But we don’t think anyone would want it to happen under pressure, or for want of legal awareness, or up-to-date information, or by dint of misinformation gleaned from the media, instead of well-informed consideration of all relevant considerations.

So – please, study it, distribute it to staff, print it off and pass it on to relatives – with our thanks and compliments for the work you are doing.

It’s called 10 things all Care Home Managers should know – and it’s for promoting good practice and preventing misinformation around DNAR/CPR, hospital visiting, access to ICU and discharge.

It should be useful for residents, family members and advocates, as well as for providers, commissioners, social workers and safeguarding staff.

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UNIVERSITY COLLEGE LONDON HOSPITALS NHS FOUNDATION TRUST v MB (2020)

In this case, the NHS Foundation Trust applied for an interim injunction on behalf of one of the hospitals it operated, the National Hospital for Neurology and Neurosurgery (a 12-bed ward for those requiring acute neuropsychiatric care for up to 14 days where the patient’s stay could be extended to 28 days in extreme circumstances).

The Trust had sought to discharge one of its patients, referred to as MB, but she had refused to leave, saying that the care package being offered by the London Borough of Camden Council was insufficient. She had mental capacity but a diagnosis of functional neurological disorder with variable upper and lower limb weakness, tremor and speech disturbance, chronic migraine, fatigue and generalised pain, complex psychological conditions, including PTSD, disrupted attachment, OCD, possibly borderline personality disorder and Asperger’s syndrome.

MB’s representative argued that due to her disabilities (she was wheelchair and bed bound) and complex mental health conditions, discharging her without properly addressing her concerns could lead to her suffering extreme distress as well as being at risk of self-harming or of committing suicide. Discharging her in this way would leave the hospital in breach of its responsibilities under articles 3, 8 and 14 of the European Convention on Human Rights (ECHR) and would amount to disability discrimination and a breach of the duty to make reasonable adjustments, contrary to ss. 29 and 149 of the Equality Act 2010, it was argued.

MB had been residing at the ward since collapsing at home on February 18th 2019.

Staff felt that she could be discharged safely and the local authority had offered adapted accommodation and 24-hour care for 1 month and then extended to 3 months by concession for reassurance, but MB wanted guaranteed care for a whole year and refused to leave.

The judge dismissed the hospital’s subsequent possession claim for MB’s room as ALL such claims have been stayed for 90 days under CPR Pt 55 due to the the COVID-19 pandemic. However, the Civil Procedure Rules do not apply to preclude a claim for an injunction, which the hospital applied for on April 3rd.

The judge heard from MB and her sister, and from hospital staff. Most of the evidence for her prompt discharge from the ward was provided by Dr Christofi, a consultant neurologist working for the hospital. Dr Christofi described MB’s behaviour as unmanageable and often aggressive and threatening. He said “It is of paramount importance that [MB] is discharged from [the Hospital/UCLH] immediately. Not only do we need the beds for critically unwell patients, but remaining in a hospital environment places [MB] at unnecessary risk of contracting COVID-19. It is therefore undoubtedly in [MB’s] best interests to be discharged to a safer location urgently.” Dr Christofi was of the view that the care package consisting of 24hr care was reasonable and that there had been no self-inflicted risk incidents to indicate that MB was a risk to herself.

“She engages in activities such as watching films on her laptop. No psychotic symptoms have been observed (relating to hearing voices, nihilistic delusions etc over the time she has been in hospital). Her plans for DSH [deliberate self-harm]/suicide and not in the context of depression. Her history suggests threats of DSH when her needs are not met…She may well try DSH if she found herself in a situation where her perceived needs are not met and I cannot predict with certainty that she will not harm herself.there are no mental health reasons I can think of to keep her in this hospital.”

MB was not allowed to adduce independent medical evidence. Her main concerns with the care package were due to her distrust of Camden Council and the impending 3 month review which she believed would strip her of the 24hr care.

Although this was not an application for judicial review, MB was effectively raising a public law defence to a private law claim for possession, which is allowed as a matter of principle, without any application for permission, as would be essential if she had been the applicant in the Administrative Court. The judge could not see any good reason for permitting her to adduce evidence that would not be admissible on a direct public law challenge; judicial review would not be an appropriate forum for challenging a clinical view that a person was fit for discharge. Moreover, clinicians cannot be required to provide treatment contrary to their own clinical judgement; the treating team’s view was that the patient did not require hospital care and could safely be discharged.

The judge concluded that MB’s care needs could certainly be met by the care package offered to her by Camden. He felt that the Council had made considerable efforts to accommodate her concerns but that it was unrealistic to think that it would ever satisfy them, due to her distrust in them and the hospital. He said that there was a moderate to low risk of MB resorting to suicide or self-harm if discharged now but accepted that she would likely suffer extreme distress. In either case, this could be managed by the 24hr care offered in her care package, in his view.

Regarding the nature of the property rights being protected, the judge said this:

“The Claimant brings this claim to enforce its private law rights as property owner. As a matter of private law, MB became entitled to occupy the room she is currently in because the Claimant permitted her to do so by admitting her to the Hospital. The Claimant has now terminated her licence to occupy that room. It follows that she is now a trespasser.

Ordinarily, the Claimant would be entitled to seek an order for possession pursuant to CPR Pt 55: see e.g. Barnet Primary Care Trust v H [2006] EWHC 787 (QB), (2006) 92 BMLR 17 (Wilkie J); Sussex Community NHS Foundation Trust v Price (HHJ Coe).

That is not currently possible because of the general stay on possession claims effected by CPR 51Z PD.

The stay does not, however, affect claims for injunctions: see para. 3 of the Practice Direction. A property owner is in general entitled to an injunction to enforce its rights as against a trespasser: see the decisions of the Court of Appeal Manchester Corporation v Connolly [1970] Ch 420 and Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780.

A hospital is no different from any other proprietor in this regard.”

The order made was as follows, regardless of the realistic prospect of vociferous non-co-operation:

(a) MB must leave the Ward by [a particular time], provided that by that time the Hospital has made arrangements to facilitate the transfer of MB (by ambulance trolley and ambulance) and her belongings from the Ward to the accommodation to which she is to be discharged;

(b) if such arrangements are made, MB must not obstruct or impede their implementation;

(c) MB may thereafter not re-enter the Hospital’s premises without the prior written permission of the Claimant, save if admitted by ambulance.

If MB does not comply, she will be in contempt of court and the full range of the court’s coercive powers will be available to enforce it.

The judge went on to consider whether MB had any prospect of defending the claim, because if she did, he could not conscionably grant an injunction, because it would effectively determine the case on possession, prematurely.

He said this too:

“It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant.

In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even if ceasing to provide in-patient care to one of them will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life.

A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B.

This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”.

Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds.

In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.

Analytically, the reason why a decision to require a patient to leave a hospital is unlikely to infringe Article 3 ECHR is because it is based on a prior decision not to provide [further] in- patient care. Such a decision engages the state’s positive (and limited) obligation to take steps to avoid suffering reaching a level that engages Article 3, rather than its negative (and absolute) obligation not itself to inflict such suffering. Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital. The present is certainly not one.

Even though the decisions to cease to provide in-patient care to MB and to require her to leave, plainly interfere with MB’s right to respect for private and family life, the evidence adduced by the Claimant amply demonstrates that the interference was justified in order to protect the rights of others, namely those who, unlike MB, need in-patient treatment. Bearing in mind the broad discretionary area of judgment applicable to decisions of this kind, there is no prospect that MB will establish the contrary.”

Comment

People may need to know during the Covid 19 period whether they can bring proceedings for possession against anyone whom they would wish to evict for a good reason – residential licensees, for instance, sharing premises with a resident landlord, or from a care home, when the home does not wish to have the person back, after a spell in hospital. This route of seeking an injunction enables some protection of a property owner’s rights, even if no possession order can be granted.

The judge did accept that a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds, by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. So that preserves public law challenges for anyone in the Covid19 period to raise, for instance on the basis of a blanket policy of non admission or non selection of anyone aged over 90, or just based on being disabled intellectually or physically, assuming the property owner is a public body amenable to judicial review, such as hospitals. The difference between this and any other case that might arise is that here, the view was very firmly that this woman MB did not NEED any other treatment the hospital could give her, whereas in a Covid competition for a ventilator, it will be different, one can only presume.

An interesting question arises in the context of care homes, who do owe human rights, directly to publicly funded clients, but who are not public bodies in the normal sense required by public law before one can bring judicial review – they do not shoulder the actual public function of a council in meeting needs, when contracted to the council, nor act as a delegate.

If one reads the full case, one discovers that the offer of 24 hour care was being made in the context of a tenancy, which MB had been willing to sign. We do not know how that came about but it is a dearly held principle of CASCAIDr’s legal experts that an offer of care cannot be made conditional upon a council’s expectation that a person provides themselves with housing, and pays for it, before it will provide the care. MB had declined services in her own home; she had declined services in a care home setting, and the Council had just kept on trying to obtain her agreement instead of treating her as capacitated to refuse offers they were satisfied were reasonable. That is not a necessary position for any council to take when a person blocking a bed has capacity; but if it does continue to try to reach agreement, that is the council’s choice, and it must still act under the Care Act.

As noted Ground floor wheelchair accessible accommodation was eventually found which could be secured through a tenancy as opposed to a temporary licence. MB’s willingness to move to the particular accommodation finally identified and adapted must be assumed, because she had signed a tenancy, but if she had been told that she was obliged to take on that tenancy in order to obtain discharge from hospital (as happens to many other people with autism in ATUs, for instance) we think that that would have made for a much stronger public law challenge against the council in a different court.

Here is the link to the full judgment:

https://www.bailii.org/ew/cases/EWHC/QB/2020/882.html

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Local Government and Social Care Ombudsman Housing Decisions

Decisions

London Borough of Newham (17 017 876) 19/09/2018

https://www.lgo.org.uk/decisions/housing/homelessness/17-017-876

The Council wrongly told Ms B that it could not provide interim accommodation until it had carried out a home visit, to confirm that she was homeless.

London Borough of Newham (17 001 635) 11/12/2018

https://www.lgo.org.uk/decisions/housing/allocations/17-001-635

Miss B complained the Council unreasonably withdrew an offer of accommodation and excluded her from the Housing Register. The Ombudsman found fault by the Council including its delay in responding to Miss B’s review request, and not correcting its error which led to her wrongly being excluded from the Housing Register.

Kettering Borough Council (18 004 478) 03/01/2019

https://www.lgo.org.uk/decisions/housing/homelessness/18-004-478

The Ombudsman found fault on Miss T’s complaint against the Council about the way it dealt with her homelessness application. It delayed processing it for about 5 weeks. It also failed properly to consider her for interim accommodation before making a decision on her application.

London Borough of Enfield (18 005 035) 31/01/2019

https://www.lgo.org.uk/decisions/housing/homelessness/18-005-035

The Council failed to provide Mr X with accommodation when he asked for help when he became homeless. Mr X has physical and mental health issues and had to sleep in a car for five months.

Horsham District Council (18 008 548) 31/01/2019

https://www.lgo.org.uk/decisions/housing/allocations/18-008-548

The Council’s Housing Register and Nominations policy was not discriminatory. The Council acted in accordance with this policy. It sought medical information when required, and acted on the information it received.

Birmingham City Council (18 006 907) 01/02/2019

https://www.lgo.org.uk/decisions/housing/allocations/18-006-907

Miss X complained about the way the Council considered her housing applications and request for priority. There was delay in the Council’s processing of Miss X’s housing application. There was also fault as the Council failed to give reasons for decisions on Miss X’s housing application or to provide the names and positions of officers reaching those decisions. The Council also failed to identify it had already received medical evidence from Miss X entitling her to a higher band score. The Council was told it should backdate Miss X’s priority band and pay her £250 for the time and trouble and uncertainty caused.

London Borough of Merton (18 007 593) 28/02/2019

https://www.lgo.org.uk/decisions/housing/homelessness/18-007-593

Mr X complained about the way the Council handled his homelessness application. The Council was at fault for delaying sending a personalised housing plan and decision letter, for not offering interim accommodation, and for not advising about its housing register or how it could help with a deposit.

London Borough of Harrow (19 000 787) 28/10/2019

https://www.lgo.org.uk/decisions/housing/homelessness/19-000-787

There were serious failings in the way the Council responded to Miss X’s housing needs as a vulnerable woman who was homeless because of domestic abuse and harassment. This had a significant impact on Miss X. She was left for a long time in accommodation where she was at risk.

London Borough of Tower Hamlets (19 000 068) 11/11/2019

https://www.lgo.org.uk/information-centre/news/2020/jan/pregnant-homeless-woman-left-to-sleep-on-hard-floor-by-lb-tower-hamlets

A pregnant woman was left in in unsuitable, unfurnished interim accommodation; for example she had to sleep on a hard floor as she did not have a bed, until she was awarded a grant one month into the tenancy. After three months, she moved into privately rented accommodation.

The Council was at fault as it delayed assessing her and issuing her with a personalised housing plan (PHP). The council also did not consider the suitability of the interim accommodation it provided, or reconsider it when she asked it to.

The council agreed to pay the woman a discretionary housing payment to cover the shortfall in her rent for a period of time, to refund the deposit she paid for her private rental accommodation and pay £1,000 to recognise the time she had spent living in unsuitable accommodation.

Sandwell Metropolitan Borough Council (18 005 804) 11/11/2019

https://www.lgo.org.uk/decisions/children-s-care-services/other/18-005-804

The Council was not at fault for placing Mrs X in self-contained accommodation attached to bed and breakfast style accommodation. The council ensured it was safe and sanitary, and provided support under section 17 of the Children Act 1989 (referring to the The Homelessness (Suitability of Accommodation) (England) Order 2003).

London Borough of Redbridge (18 017 247) 27/11/2019

https://www.lgo.org.uk/decisions/housing/homelessness/18-017-247

The Council wrongly treated Mrs B’s family as two separate households when they presented as homeless, failed to engage with a homelessness application for six months and failed to provide interim accommodation for six months. That meant the family were separated and had to spend time sofa-surfing. An apology, payment to Mrs B and her daughter and a training session for officers was a satisfactory remedy for the injustice caused.

London Borough of Hillingdon (18019714) 16/12/2019

https://www.lgo.org.uk/decisions/housing/allocations/18-019-714

The Ombudsman found fault on Ms T’s complaint about the Council’s children’s services failing properly to consider her and her daughter’s needs, or suitability, when providing them with accommodation out of borough. It failed to show that this was the only available accommodation. It also failed to show it considered, and kept under review, its suitability in light of her daughter’s needs and the 4 hours’ travelling it tooke for her to get to and from school.

Folkestone & Hythe District Council (18 018 663) 02/01/2020

https://www.lgo.org.uk/information-centre/news/2020/feb/folkestone-council-chastised-by-ombudsman-over-housing-complaint

The Council was at fault as it failed to consider information provided to it by a family which applied for housing. It delayed helping them until they were actually homeless.

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Training Offer for the Coronavirus crisis period

Under the Coronavirus Act, it IS now open to councils – and may well already be necessary  to use the normal legal framework duties as powers only, and to prioritise service provision on the basis of severity or imminence of need only, abiding by human rights.

The problem now may be the sheer shortage of staff and services, not the money, any longer.

The facts still remain, however, that

a) councils’ senior management teams will need to make lawful and considered recommendations (in the name of the elected Members) for policies and strategies regarding the powers to do all that the Care Act used to ‘oblige’ councils to do (ie how to prioritise, ethically and lawfully, even for assessment, and who should be charged, not charged, or just charged later) – the Guidance to which all councils must have regard places an enormous weight on the thinking of the Principal Social Worker, please note

and

b) front line staff and team managers obviously and urgently need to know how to assess, evaluate and ‘order’ apparent needs relative to each other by reference to type and extremity, and how to recommend the content of care plans or budgets, based on competent human rights aware considerations, and scarcity of resources, not just money. And there’s already been a derogation from human rights in a care home case this week, so this is no small ask…

c) Section 27(2), on revision of existing care plans, has NOT been included in the provisions that are capable of being suspended or modified.

That means that involvement of service users and their carers BEFORE any revision of a care plan – is still a continuing legal obligation.

Whatever involvement might mean to a judge, notification of an arbitrary decision, just taken back at HQ or on an online meeting of the SMT, is not likely to be lawful, we would suggest. 

We want to help, rather than hinder, councils facing difficult times, so here are some free ideas for thinking about, sooner rather than later:

  • You might develop a policy on screening for assessment for instance, or an online route into supported self-assessment, or issue a statement of categories of service users or types of needs that aren’t going to be thought to be able to sustain a cut.
  • You might issue some clear advice and information about a policy for letting people’s relatives be paid out of the direct payment, albeit that they live in the same household. If it’s not necessary now, when would it ever be?
  • Or it could be a policy that your council has decided upon for deferring charges for social care, for the duration of the crisis, perhaps, or using its discretion for increasing the Minimum Income Guarantee?
  • It might be about a council’s indication of the sort of situations where the council publicises in advance that there would be a breach of human rights if the needs were not met – or what criteria it’s going to use.

Our guess is that your legal department will be overstretched themselves, busy prioritising cases about children’s welfare, right now, and will not have time to train all your staff on any of the above. 

CASCAIDr’s Trading Company will gladly do so, by webinar, so that you can offer staff the safety and convenience of listening to the material on their own, whether self-isolating or still at work. The recordings will be part of the package. 

Our CEO Belinda Schwehr is known not just as a compelling and experienced adults’ services trainer, but for her neutrality and fidelity to the legal framework as it is, at any given time, not merely how we would like it to be. She is fluent in the language of human rights, as well as social work and care, having trained many thousands of staff on the Human Rights Act – before designing training on the Mental Capacity Act, Continuing NHS health care law, s117 law, and the Care Act itself.

Fiona Bateman, our Chair, is an expert on safeguarding, nil recourse to public funds and Continuing NHS health care, as well as the Care Act, MCA, human rights law and mental health, as well as guidance for multi-disciplinary support for rough sleepers.

Sue Inker is our resident expert on all things MCA / DoLS / Community DoL / CoP, and will be available for consultancy over Zoom, as well. She has been involved recently in mapping the NHS constitution to human rights articles, to domestic legislation and to the regulatory framework, so this expertise in safeguarding and human rights could also be of immense help. 

Our Trading Company’s training fees

The webinars will be available from 8 April – £750 in total for 4 hours, broken down to 2 sessions of 2 hours each (a discount from our standard fee to non-charities – we do absolutely get that this is not the time to price gouge, but our Trading Company’s role is purely to support the charity, please note). 

Content of Session 1

The first webinar will look at the emergency powers legislation (in force now, but awaiting Guidance and regulations about suspension);

  • what it does to the Care Act functions of assessment, review and choice of accommodation/continuity;
  • what giving a choice to councils whether or not to adopt the easements, in Guidance that is itself not able to override the law as to suspension of the duties, could possibly mean for legal challenge or liability risk later on;
  • and how senior management can use existing equalities and ethical principles to develop a lawful policy and strategy for organising screening, assessment and review functions, for management of existing and future clients’ care and support needs;
  • lawful policy development on meeting existing or new and otherwise eligible needs in NON Human Rights cases (existing and new) will be addressed, focusing on significant impact/critical risk, in the context of this crisis;
  • suspension of charging functions and expansion of Disability Related Expenditure deductions will be addressed; 
  • discussions with providers, as to fees, will be addressed.

Content of Session 2

The second webinar will look at the invidious question of using a human rights approach to evaluation and decision-making about actual care plans (for front line staff and panel members)

  • a focus on decisions at the point of hospital discharge, where the framework for CHC assessment is also altered in ways that are unclear, given that NHS provision functions do not give rise to enforceable duties in any event;
  • a focus on honest conversations with informal carers – and the questions that must be asked before a cut or a refusal of care;
  • we will discuss policy development on when it either is or is not, ‘necessary’ to permit close relatives to be paid out of a direct payment – whether or not the government has got around to issuing the guidance that has been promised, by the time of your webinar;
  • and we will include a suggested template for decision-making in the online paperwork.

Options

Councils can buy just the recordings – if you can’t spare any of your own staff to participate in person

Councils can buy them separately or together, depending on your needs. 

Or you can set up a date for live sessions for £125 extra for bespoke versions of either of the two (ie £375 + £125 for either one, in live form).

  • You might find that more useful, say, if your SMT is already making plans but wants a ‘sense’ check of them, as soon as the law is finalised.
  • Or you could have Session 2, live, for the team managers who are going to have to moderate front line staff’s recommendations that seem either inadequate or excessive, or just not rational or evidence-based, in relation to what the law will still require.

You can commission a further webinar recording on the changes to the Mental Health Act too, for the same price of £375, but we have to prioritise preparation for the Care Act changes, so we will be offering that slightly later.

If you need legally literate consultancy, instead of or on top of training, all three of CASCAIDr’s training team can provide it to groups of staff, by phone, or through Zoom (for which all you need is your laptops) – for our standard hourly fee to any public body of £200 an hour.

The income will directly support CASCAIDr to continue to support members of the public to ensure that they are treated as lawfully as the new regime will stretch to! 

Please email gabesusman@cascaidr.org.uk if you want to set up a specific date for bespoke sessions, or belinda@cascaidr.org.uk, if you need urgent consultancy.

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CASCAIDr’s Translation of the Easements Guidance

As promised, CASCAIDr’s translation or ‘alternative’ interpretation of DHSC’s guidance on the Care Act modifications. Click here to view the document.

If practitioners and public want more like this, you need to donate whatever you can, on our button on the right, please, or here: https://bit.ly/2QZZyDc otherwise CASCAIDr can’t continue to function and won’t survive the Coronavirus crisis.

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Article 8 of the European Convention on Human Rights – The right to respect for all things close to heart and home including during the Coronavirus crisis

In the last few days, CASCAIDr has been covering human rights in the context of adult social care, on social media.

Examples have touched on policies or resources difficulties which have seen carers doing the council’s job for a variety of reasons, varying from not knowing that there is no legal obligation to take on that responsibility, to feeling one has literally no choice but to do it. Liverpool v Hughes is a case where the carer, rather than the client, needed to bring the challenge. Other cases have seen disabled people left in dire and unconscionably long-lasting situations (Enfield v Bernard) and people’s relatives being upheld in their wish to participate and be involved in due process (Wandsworth v Goldsmith).

You can search for these in www.CASCAIDr’s search box – and at the end of this overview of article 8, here are three more that we predict will matter in the coming days – Elaine McDonald’s case (about the means by which needs can be met, consistent with dignity), Rachel Gunter’s case (about being cared for at home) and MM’s case (about maintaining intimate relationships chosen by people with capacity).

Article 8 is the most relevant article of the ECHR, to which we are still signed up, despite Brexit. The vast majority of the Convention has been made a directly applicable part of our own UK law through the 1998 Human Rights Act, still also in force for all purposes, which provides:

8(1) “Everyone has the right to respect for his private and family life, his home and his correspondence”.

8(2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the lawAND is necessary in a democratic society in the interests of 

  • national security [no great surprise there, for anyone, we would suspect],

BUT there are further caveats to take note of, because like most Convention rights, article 8 is not absolute and article 8(2) provides several qualifications, or ‘justifications’ for proportionate interference by a public authority – justifications which could well have been written with the Coronavirus crisis and the problems it presents to our local government sector, expressly in mind!

  • public safety
  • or the economic well-being of the country
  • for the prevention of disorder or crime,
  • for the protection of health or morals,
  • or for the protection of the rights and freedoms of others”.

The reference to ‘the economic well-being of the country’ may be read now, within the UK, as if it said the ‘area’.

The reference to necessity is to a concept of proportionality – that is, any interference by a public authority with an individual’s article 8 rights must correspond to a ‘pressing social need’, and be proportionate in pursuit of a legitimate aim in order to count as ‘necessary in a democratic society’. Thus proposals which will have a financial impact one way or the other cannot be justified just because a saving or getting in an income is desirable – it must be more important than that.

Ironically, in this crisis, it will not be money, so much, that we predict that will be weighed in the balance: it will be the absence of staff or trained staff or trained staff with sufficient protective equipment. Even if there’s fault behind our inadequacy to deal with the problem immediately, that inadequacy is a fact that has to be factored in to the thinking about who gets what and when and why.

The concept of proportionality requires the public authority to strike a fair balance between the interests of the individual whose rights are being impinged upon, and the interests of others or of the community in general. When life is at stake, that is a particularly difficult balance to strike.

Care homes and providers who are contracted to councils, are bound by human rights, because the Care Act says so.

Contractors delivering services for the NHS, for instance, all those in NHS paid for interim beds now that Continuing NHS healthcare assessment has been suspended – also owe human rights, not because of the Care Act but because they are discharging statutory obligations for the NHS directly under the NHS Act, and are thus what’s known as a hybrid public authority.

So, for all providers, there is an obligation to refrain from unjustified interference in people’s private lives and relationships – which is why blanket bans on visiting, are probably not lawful, right now.

However, it is not merely the negative one which the language would suggest. Article 8 also imposes a positive obligation on local authorities to take steps to act to secure enjoyment of the rights or to protect people’s enjoyment of them. In Guerra and Others v Italy, for example, the ECtHR held that a failure by the authorities to take appropriate action to reduce the risk of pollution to the applicants, who lived near a chemical factory, was a breach of article 8.

Human Rights and Dignity – the Elaine McDonald case – incontinence pads for someone who’s not incontinent?

“Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in exceptional cases where the State’s failure to adopt measures interferes with the individual’s right to personal  development and his or her right to establish and maintain relations with other human beings and the outside world.

Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention.

This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources. In view of the familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court.”

The judge concluded: “I have the greatest sympathy for the misfortunes of Ms McDonald and, I would like to believe, a real understanding for her dislike of what the Royal Borough has proposed. However, even though the Royal Borough had in my judgment failed in its duty in overlooking that at the time of its November 2008 decision Ms McDonald’s defined need was still that of assistance to access the commode at night, that error was not born of any lack of respect for her dignity, but of a concern, even if at that time wrongly executed, to perform the difficult task of balancing its desire to assist Ms McDonald with its responsibilities to all its clients within the limited resources available to it in its budget.”

Human rights impact within CHC law – keeping a person in their own home, even though there is no right to force the PCT to pay for this:

The Gunter case

http://www.in-control.org.uk/media/33617/independent%20user%20trust%20judgement%20.pdf

“Dr Milne also notes that Rachel had made a far greater recovery than was predicted at the time of her surgery and had continued to improve since being at home. This accords with the views of others and it is apparent that the care provided to her by her parents, in particular her mother, has resulted in a remarkable improvement in her condition. That is, as it seems to me, a very important consideration which must be given due weight in deciding on her future.

I do not regard evidence of what benefits could accrue from the expenditure of sums which could be saved in providing a less costly package for Rachel as helpful. It is obvious that Health Authorities never have enough money to provide the level of services which would be ideal, but that cannot mean that someone such as Rachel should receive care which does not properly meet her needs.

The interference with family life is obvious and so must be justified as proportionate. Cost is a factor which can properly be taken into account. But the evidence of the improvement in Rachel’s condition, the obvious quality of life within her family environment and her expressed views that she does not want to move are all important factors which suggest that to remove her from her home will require clear justification.”

Human rights, sex and learning disability – the MM case

https://www.bailii.org/ew/cases/EWHC/Fam/2007/2003.html

A young woman with learning disabilities but enough capacity to have sex with her long term boyfriend, albeit maybe not enough to figure out how bad he might be for her, and who was therefore expected by the council not to have him to her supported living accommodation – alleged a breach of human rights when the council refused to provide them with somewhere else safe to go to have sex. The judge said this:

“I should add that the local authority cannot in this connection seek to avoid its positive obligations by seeking to toll the bell of scarce resources.…the additional financial burden which this may impose on the local authority is comparatively modest given the overall cost of its provision for MM. And the right in play here is, to repeat, too important, too precious in human terms, to be swept aside by such purely fiscal considerations. If the local authority seeks to impose on MM a regime which in fact involves a breach of her Article 8 rights – the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Article 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM’s life is, he [MM’s counsel] submits, and I agree, disproportionate. And in my judgement it involves a breach of her rights under Article 8.”

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Provider (commissioned by Bristol County Council) at fault for not following emergency procedure and failing to provide care for one night (relevant to Coronavirus scenarios)

Decision Date: 18th December 2019

What Happened

Mrs B complained on behalf of her husband, Mr B.

Mr B received three visits a day from care workers. The last visit of the day was scheduled at 9pm, to help him get ready for bed, which involved using a hoist to use the toilet. Mrs B could not help with those tasks as she herself had health problems.

Mr B started using the Care Provider (CP) on 30th January 2019. On Friday 1st Feb, there were heavy snowstorms which affected the CP’s ability to get to its customers.

The CP said that they rang Mrs B at 21.30 that night, to say that Mr B’s carer had broken down in the snow, so would be over an hour late. It provided a screen shot showing a call made to Mrs B’s number at 21:30 on 1 February 2019, lasting 13 minutes. The CP said Mrs B was very aggressive and upset, saying 11pm was too late and ‘hung up’.

Mr and Mrs B said they never received the phone call. Mrs B provided evidence that she called the CP’s emergency number at 21:52, 22:16, 22:31 and 22:32 (all lasting less than 1 minute).

After failing to get through to anyone from the CP, she called Bristol City Council’s main number and the emergency council number shortly afterwards at 22:23 to say Mr B’s morning and lunchtime visits were amalgamated into one and no-one had turned up for the evening visit. Mr B had not been to the toilet all day. He needed to be hoisted over the toilet and into bed.

The duty worker advised Mrs B to call the Care Provider’s out of hours number and call back if she couldn’t speak to anyone.

She rang back at 22:35 to say the out of hours number was switched off.

The duty worker also tried to get in contact with the CP, could not, so tried to arrange alternative care for Mr B. Nothing was available so advised her to ring 111. He wrote the following summary and referred the case to Mr B’s social worker to follow up.

“This lack of service is effectively an adult safeguarding issue in terms of care provider neglecting their responsibilities, leaving [Mr B] with no help with toileting and getting to bed. There has been no communication from the care agency, neither is there any facility for [Mr and Mrs B] to communicate their needs to the agency. Please can the s/w treat this as such and take safeguarding actions.”

The CP said it did not receive any voicemails from Mrs B, or the duty worker that night. It suggested that because of the snow storm, the on-call worker would have been taking calls and doing visits at the same time, so calls to the emergency number would have been transferred over to her mobile phone, possibly affecting the receipt of voicemails.

The Care Provider rang Mrs B back on Monday 4 February 2019. Mrs B said she had made several calls to the emergency number but no-one had got back to her. Mr B had not had a visit and sat in his wheelchair all night with wet clothing.

The Care Provider investigated the complaint; it found no problems with its telephones, and assumed that Mrs B did not want the visit because she had said ‘what’s the point’ and hung up, when the CP said they would be late to the 9pm visit.

Following this conclusion, came a long back and forth dispute between the CP and Mrs B over the phone calls. On the 4 March 2019 the CP repeated its findings and the LGO stated that the two parties ‘agreed to disagree’.

On 17 March 2019 the Care Provider gave Mrs B notice that it would be terminating its service on 16 April, as it had reports of Mrs B acting aggressively towards staff.

Mrs B denied this, and asked if the CP would consider. The CP declined, so Mrs B found an alternative agency, and complained to the LGO.

What was found

Missed appointment

The LGO stated that ‘Given the discrepancies in the call records provided by the Care Provider and the additional evidence from Bristol City Council I am unable to safely conclude that the Care Provider called Mrs B at 9.30pm to offer a visit.’

The provider’s evidence was that it made a call to Mrs B at 9.30pm on 1 February 2019 which lasted for 13 minutes. But a separate screenshot did not correlate with this call: it was taken half an hour later than the first one and shows a missed call from Mrs B’s number followed by two outgoing calls to her number on a Friday.

The first screenshot should show details of the missed incoming call from and the two outgoing calls, but it only shows one outgoing call at 9:30pm.

The second screenshot could well have been earlier in the day or from a different Friday – one could not tell for sure.

From the LGO’s perspective, this called into question the validity of the first screenshot.

This, coupled with the duty worker also being unable to get through to the out of hours number that evening led the LGO to its decision).

Despite the CP failing to offer a visit, Mrs B called the out of hours number four times, as did the duty worker. The CP’s failure to respond to those calls, whether a message was left or not, was fault which led to Mr B being left in an unacceptable state for a whole night.

Emergency Procedure

The Care Provider provided a copy of its emergency procedure. It covered bad weather situations and it required the Care Provider to inform customers that visits may be late due to bad weather. It also required it to have an out of hours emergency number. Given the failure to answer or respond to messages and calls on the emergency number the LGO concluded that its emergency procedure was not followed.

Given Mrs B’s disability, Mr B’s visit should have been assessed as a priority one. There was no evidence that it was.

The Care Provider had a reasonable amount of evidence from its staff of Mrs B being rude and aggressive. The Care Provider decided to give notice due to the impact of this behaviour on its staff. The LGSCO noted that the provider had explained its reasons, considered Mrs B’s response and gave her adequate time to find a replacement.

However, in recognition of the distress caused to Mr and Mr B by the failure to do the care visit, the LGO recommended the CP pay Mr and Mrs B £300.

Points for the Public, Service Users, Families and Councils

There is no detail in this report as to what the council’s own Safeguarding Team thought of this matter. Bristol was technically at fault however, because all statutory duties – even if contracted to outside providers, or delegated to outside providers, remain the responsibility of the public body. The duty is owed by the council to the client under the Care Act and is non-delegable.

The provider’s emergency plan was not a bad one, and it’s an interesting thought in light of the Coronavirus Act modifications to the duty to meet needs, when to do otherwise would be a breach of human rights.

Its own plan required the Care Provider to:

  1. monitor weather reports and if required check on the condition of vulnerable customers living in isolated locations;
  2. assess safety of staff;
  3. keep a list of all staff with 4WD vehicles;
  4. advise customers when appointments may be late due to conditions;
  5. borrow 4WD vehicles to reach cut-off customers who need assistance; and
  6. prioritise services according to a risk rating.

Priority level one customers include those who lived alone or who live with someone who is unable to assist in an emergency. This category was then prioritised according to the number of visits per day.

The plan gave a mobile number for out of hours emergency situations.

Let us assume that the Care Act has been suspended. The only people who are getting their needs met, under commissioning arrangements giving effect to the Care Plan, are people for whom an omission would count as a breach of human rights.

According to the LGO, this gentleman should have been counted as priority one.

If one asks oneself what that would mean, in a staff shortage situation where the backstop is human rights, one has to ask whether not being able to go to the toilet would be a breach of article 3 or article 8.

We have to say that it is not likely – for a one-off situation. It’s shocking, and it’s not desirable, or excusable, but a person competing for a carer, with a life-sustaining need, is going to be preferred, in an emergency.

But if it was not every now and then but systemic, because of an evening visit being cut out of the care plan, to free up services for someone else, because of the virus, the sector will be looking back to the Elaine McDonald case, where incontinence pads were not thought to be inadequate in terms of respect for her dignity and autonomy, by the Supreme Court (or the European Court of Human Rights)

Comparing that with Enfield v Barnard, in 2002 – is interesting – in which case a breach of article 8 was found to have occurred, and in which damages were awarded for a breach of statutory duty, in the context of community care:

Having referred to his back injury and to the tortuous route up steps and down steps to the bath and WC in the lean-to at the back of the house, [Mr Bernard] said this this:

“Because my wife is doubly incontinent and only gets, frequently, less than 1 minute warning of the need to use the toilet, she commonly defecates or urinates before we reach the toilet.

The result has been that I have had to persistently clean the carpets, together with her clothes and bedclothes.

This is a problem, which arises several times each day.

I have to go to the laundrette often twice a day, and because of the layout of the house, I have had to buy adult size nappies for my wife together with disposal pants and wipes…

We only have benefits to live on and the additional cost of going to the laundrette twice a day and having to buy large amounts of floor cleaner and carpet cleaner has left us impoverished. We have not been able to pay the difference between our Housing Benefit and rent because we are so impoverished by these laundrette and cleaning costs.

Additionally, my wife’s role in bringing up the children is greatly limited. She cannot access the upper part of the house at all and it is a real struggle for her to leave her bedroom, which is in fact, the family’s living room. She has no privacy. We have six children, and she is in the living room, which is accessed directly from the front, street door.

Understandably my wife finds this state of affairs depressing and demeaning. It is very humiliating for her to constantly defecate or urinate in her clothing, as she is unable to reach the toilet. This happens as a result of the layout of the house and because the house does not have proper adaptations for a disabled person.”

https://www.escr-net.org/sites/default/files/caselaw/full_judgment_2.pdf

The Court said this, using ECHR jurisprudence already established at that point.

“Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.”

In Price a severely disabled woman had been imprisoned for three nights for contempt of court. In paragraph 30 of its judgment, the court said: “There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3.”

It should be noted that in that case male officers had been required to assist in lifting the applicant on to and off the toilet, and that “by the time of her release the applicant had to be catheterised because of the lack of fluid intake, and problems in getting to the toilet had caused her to retain urine”.

Although not conclusive, the fact that there was no intention to humiliate or debase the claimants is a most important consideration. The cases concerned with prisoners’ rights, upon which the claimants placed great reliance, must be treated with great caution outside the prison gates. A prisoner is in a uniquely vulnerable position: detained against his will, he is literally at the mercy of the prison authorities. It is understandable that the protection afforded by Article 3 should be rigorously applied in such circumstances, even if there is no intention to humiliate or debase.

By contrast the case under Article 8 is not finely balanced. Under Article 8 the claimants are entitled to respect for their “private and family life.” While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private or family life… In Botta v Italy [1998] 26 EHRR 241, the court said this in paragraphs 32 to 34:

“Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the state to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.

… I accept the defendant’s submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of Article 8. Respect for private and family life does not require the state to provide every one of its citizens with a house: see the decision of Jackson J in Morris v LB Newham [2002] EWHC 1262 (Admin) paragraphs 59 to 62. However, those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act.

Whether the breach of statutory duty has also resulted in an infringement of the claimants’ Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?

Following the assessments in September 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants’ family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities.

Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after their children. It would also have secured her “physical and psychological integrity”. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.

The Council’s failure to act on the September 2000 assessments showed a singular lack of respect for the claimants’ private and family life. It condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Article 8.

Accordingly, I have no doubt that the defendant was not merely in breach of its statutory duty under the 1948 Act. Its failure to act on the September 2000 assessments over a period of 20 months was also incompatible with the claimants’ rights under Article 8 of the Convention.”

In my experience in this court, dealing with a wide range of complaints against public authorities, most citizens who have suffered as a result of some bureaucratic error are not motivated, or at least not primarily motivated, by a desire for monetary compensation.

They institute proceedings because they feel outraged by what they see as an injustice and want “them”, the faceless persons in an apparently insensitive, unresponsive and impenetrable bureaucratic labyrinth, to acknowledge that something has gone wrong, to provide them with an explanation, an apology and an assurance that steps have been taken to ensure (so far as possible in an imperfect world) that the same mistake will not happen again. This assurance will at least give them the satisfaction of knowing that they have not suffered in vain.

If a public body takes all of those steps reasonably promptly, once the problem has been drawn to its attention, then it may well be the case that nothing more is required by way of monetary compensation in order to afford “just satisfaction” in very many cases.

Sadly, that is not the position in the present case. The defendants were repeatedly urged by the claimants’ solicitors to take action in numerous letters written between August 2001 and February 2002; most of those letters were simply ignored.

Through Counsel, the defendant agreed to the making of a mandatory order on 27th March 2002, but there has been no acknowledgment that the defendant was in error, no explanation, no apology, and nothing to indicate that the defendant’s procedures have been improved so that the same kind of mistake, the Housing Department failing to act on Social Services Department assessments, is less likely to occur in the future. Moreover, the defendant’s conduct in dealing with the matter was not confined to mere inaction. In February 2002 the Housing Department threatened to evict the claimants. The threat was soon withdrawn, but it should never have been made had there been proper liaison between the defendant’s Housing and Social Services Departments. After 27th March 2002 the defendant failed to comply with the original and then with the extended timescales set by the court. There may well have been a reasonable explanation but, again, there has been no apology or explanation, and the apparent delays were compounded by the defendant’s insistence, maintained until the 11th hour, that the offer of 66 Mitchell Road had discharged its statutory duty.”

“The parties had not considered the two other possible sources of information: the reports of the Local Government Ombudsman and the awards for pain and suffering in cases of minor personal injury. I invited them to make written submissions dealing with these matters, and I am most grateful for their very helpful responses. Mr Clayton referred to a number of decisions by the Local Government Ombudsman, recommending awards between (at current values) £16,530 and £2,120 for various failures in the field of social services: to provide care for a child with severe learning difficulties, to provide home care assistance for a mother with multiple disabilities, to provide a residential placement for a young man with learning disabilities, to provide a residential care home for an elderly lady, and adequate care at a multi-purpose day centre for a young man with sensory impairment. In all of these cases, the families who acted as carers suffered varying degrees of stress, exhaustion, anxiety and disruption to their lives. At the bottom end of the scale, a mere failure to recognise a carer’s needs merited an award of £2,000. Non-provision of services for a relatively short period of time can result in a substantial award (£5,000 for 11 months of stress and exhaustion). At the top end of the scale, in cases where there is a great deal of anxiety and disruption or extreme stress, significantly more has been recommended (£10,900). The highest recommended award (£16,350 at current values) included a significant element of pecuniary loss. The complainant had been unable to find a suitable job because of her care commitments, had sought medical treatment for depression, had exhausted her substantial savings and was reduced to living on income support, her previous standard of living having disappeared.”

It is very much in the interests of society as a whole that public authorities should be encouraged to respect individual’s rights under the Convention. A “restrained” or “moderate” approach to quantum will provide the necessary degree of encouragement whilst not unduly depleting the funds available to the defendant for the benefit of others in need of care.

For all these reasons, I am satisfied that the award to the claimants should be at the very top of the £5,000 to £10,000 range identified above.

Although there are two claimants it is important to avoid double counting, and since these damages are intended to give them just satisfaction for a breach of their Article 8 rights, it is sensible to start off with an overall figure to reflect the impact of the breach on their family life together, and then to apportion that figure between the two claimants having regard to the relative effects on their private lives.

Bearing all these factors in mind, I conclude that the appropriate figure is £10,000, and I apportion that £8,000 to the second claimant and £2,000 to the first claimant.”

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-019-660

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Our approach to the Coronavirus Crisis – what CASCAIDr can do for you

CASCAIDr – the All Adults’ Care and Health specialist legal advice charity – is compelled to go into a different mode for the duration of the Coronavirus crisis.

Advice charities are not getting any hint of financial support, and small charities will become insolvent very quickly, it is feared.

In all honesty, we can’t hope to cope with NEW clients’ individual legal issues – not to any deep level or to a resolution – not if there’s no clear law to use, to enforce the Care Act duties that will shortly be suspended – downgraded into powers only – apart from where NOT meeting the needs would amount to a breach of human rights …

  • We will still offer a steer for free, to anyone who needs one, and makes a referral on our online referral form here – for as long as we can.
  • We will refer people who need ongoing legal work to legal aid law firms with capacity to take work on, in compelling cases – we can’t hope to achieve what a regulated law firm can in an emergency, and we can’t ethically charge for trying, or wasting precious time.
  • This is going to be our main output for a while: we’re going to provide free template letters online, for the following groups of people to use in their own names – but in the fervent hope of donations, however small, with Gift Aid ticked wherever possible, via https://bit.ly/2WCNHhZ.

The letters will need to be adjusted, to suit one’s individual circumstances but are intended for the following:

  • New candidates for a care package, being screened out or left unfeasibly long
  • Current service users facing apparently arbitrary cuts to existing care plans, or any cuts, implemented without some genuine involvement of the adult and any carer first
  • Anyone being offered services that are inconceivably inadequate or inappropriate in nature
  • Informal carers being manipulated or forced into doing more than they feasibly feel able to
  • Relatives of those facing going into an unsuitable care home
  • Providers facing unilateral cuts to their fees or refusals to review clients when evidencing increased client needs

If you can think of others that are needed, we will do it! Email ideas to belinda@cascaidr.org.uk please!

  • We can also provide expert advocacy under s27(2) and s27(3) for anyone who needs it before a revision of a current care or current support plan. We will necessarily have to charge a low hourly rate for that work, but it can be done over the phone or by way of Zoom (online video conferencing software, for which you need only a link and a smart phone or a tablet). Email belinda@cascaidr.org.uk if you need to arrange some of that…
  • Finally, we’re going to run a page for members of the public to use to report good practice and policies as they emerge, from Councils and Care Trusts – you can find out about that, here.

Please note that our Trading Company will also be offering top-notch training by webinar/webinar recordings – to councils’ and Care Trusts’ staff. All net income goes to support the charity, of course. You can find the link here.

The training content covers how to do what they now must do, as lawfully as possible, with regard to probably the most difficult conversations – and decision-making – that those practitioners and managers have ever been obliged to face …

So if you’re a front line worker, a team manager or a senior manager and want that to be available, please mention it to your Head of Service now.

The offer has already gone out to all Directors and Principal Social Workers in the next day or so, and available after April 8, if we can possibly manage it, and publicised here

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Keeping calm about the Care Act, during the crisis

CASCAIDr wants to support councils to excel at this very difficult time.

We know that social work staff did not sign up to do the minimum for vulnerable adults.

And we fervently hope to see a new approach to the value of social work and social care, after the virus is beaten, across government and amongst the public.

The number of people volunteering to offer care and support via the “NHS” volunteer scheme is testament to the importance of a social care safety net in our society.

Our request is that the public shares its experience, via this particular page, with a description of anything good that their council is doing or saying, under the Care Act, whilst the normal Care Act legal duties are on ice and everyone has to accept being prioritised, rather than having enforceable legal rights to any particular quality of life.

  • You might tell us, for instance, about a policy on screening for assessment for instance, a website for supported self-assessment, or a statement of categories of service users or types of needs that aren’t going to be thought to be able to sustain a cut.
  • It might be some clear advice and information about a policy for letting people’s relatives be paid out of the direct payment, albeit that they live in the same household. If it’s not necessary now, when would it ever be?
  • Or it could be a policy that your council has decided upon for deferring charges for social care, for the duration of the crisis, perhaps, or using its discretion for increasing the Minimum Income Guarantee?
  • It might be about a council’s indication of the sort of situations where the council publicises in advance that there would be a breach of human rights if the needs were not met – or what criteria it’s going to use.

So here’s our invitation:

  • We are keen to hear about – and publicise – sound, rational, sensitive, humane policies and practices from Councils or Care Trusts.
  • You don’t need to name yourself, publicly, if you don’t want to – your email address won’t be shown and if you don’t even want your NAME to show, simply omit to fill out the name box, and you will be shown as Anonymous.
  • You can choose whether or not to mention the council’s name.
  • You must anonymise the name of the person whose situation or stance you’re describing, if it’s not you – whether a service user or a worker. We suggest how to do that below.

We won’t publish material that we think is negative – it’s not the time or the place.

  • We are not saying don’t give us bad examples, or problems; we are saying that those need to be treated differently, please note.
  • If it’s a policy or general approach issue, do still give us it, please, on the form below, and we will reply privately to you with suggestions about how to get poor practice changed – we can exert some leverage with a simple letter as to why it’s not a great idea.
  • Examples that come to mind are the stories of surgeries sending consent forms for DNRs to be filled out in care homes on the basis that people over a certain age ‘won’t be offered hospitalisation or a ventilator’. Words fail us. But letters to CCGs and councils rarely do!

We’ll be moderating the material posted to the form at the bottom of this page, behind the scenes, so accounts of bad practice or policy will be treated as referrals for a free steer as to their legality, not put up on this page.

Anything that is put up on this page as an example of good practice can be further clarified by the council or Care Trust being promoted, via a further comment.

Our government will need an evidence basis for doing the 6 monthly monitoring of the Care Act easements, to which it has committed, regarding the hugely important decision as to when to resume “normal” Care Act services, based on legal rights and duties. This page can be a source of evidence of good approaches, and that might help the whole sector back to normality, sooner.

Individuals’ difficulties

If it’s an individual’s difficulty you need to get some help on, please tell us on our referral form on the top line menu bar, above, in the normal way.

How we’re surviving the crisis, as an organisation with no public funding stream

  • Unless charities get financial assistance, our Corona Crisis Mode is limited to a private free steer on all such issues.
  • Like every other charity, we’re scrabbling for grants, philanthropy, and donations.
  • We can and will make referrals on to law firms with capacity to take on cases that compel urgent action.
  • Any law firm that wants to offer us information about its credentials for this kind of work, and is willing to support us legitimately following SRA rules, Legal Aid rules or under its Corporate Social Responsibility Policy is welcome to get in touch with belinda@cascaidr.org.uk.

PS Don’t forget that we’re also providing free template letters for use by all members of the public in their own names, who want to know the right way to assert their case, politely and calmly, as one that must or really should be prioritised – the link to that page is HERE where they will be going up over the next few days, if we can survive, financially


Our form:

May we suggest that you copy and paste the most relevant form of wording below, into the Comment box below, before continuing to type in your own local story or good/not so good practice example:

My council is [name of the Council or Care Trust]…

I /Mr X/ Ms Y applied for adult social services, since the beginning of the virus crisis and …

Or

I / Mr X / Ms Y … am/is an existing adult client with a current care package/direct payment for care and support and …

Or

I am an unpaid carer to a person who has been getting adult social care services, and …

And then continue with the example of good practice, please, here

eg … the council / Care Trust is saying that…


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