Social workers, care home managers, community medical professionals, I am talking to you.
(A bit of the basics here for anyone new to the area – section 21A challenges are brought when P is in a hospital or care home and a standard authorisation under the Deprivation of Liberty Safeguards is in place. It is most commonly used when P is objecting and their RPR is protecting their article 5(4) rights).
I get it, you are busy doing your job in difficult circumstances. And some customers, no matter how hard you try, will always be unsettled. So when you hear that a section 21A challenge has been made, you sigh and you think about how much work this is going to create for you; how much your decisions and records will be scrutinised, and it feels personal.
But most likely it isn’t. I mean, if you’ve not been doing your job properly and/or you’ve had a serious falling out with the RPR, it might be personal. I like to assume that most people I meet are diligently going about their work though. So let’s try looking at this in a different way.
Firstly, the advocate/family member in the RPR role is doing what the law says they have to. Article 5(4) of the European Convention on Human Rights and Human Right Act 1998 gives everyone the right to have their deprivation of liberty scrutinised by a court. The cases of AJ  EWCOP 5 and RD  EWCOP 49 stress that when DoLS is involved, s21A is the route for that challenge. And whilst the cases give some leeway in interpreting the behaviour of P and deciding whether or not they are objecting, once they’ve made that decision, they have to bring a challenge. Now in practical terms, if the issues that P is concerned about are likely to be resolved (for example, a move is planned) in the time it will take a challenge to be brought, then the RPR will probably hold off. But otherwise, that challenge is coming.
Now let’s, for a moment, think about the ‘why’s here.
Why does article 5(4) matter? Well, that’s pretty simple. It is the protection against arbitrary state detention. And yes, that does still happen.
Why did the court interpret it this way? I could quote great swathes of the judgements at you here. But let’s face it, you’ve probably already read the judgements, or at least a summary of them by someone much cleverer than me.
But the way I explain it when I deliver training on this issue, is that it boils down to one very simple principle:
Human rights apply to everyone
We can’t start denying them to certain sects of society in the interests of convenience. Because that, my friends, is a slippery slope into a society none of us want to be in (think 1984, Handmaid’s Tale, pretty much anything Philip K Dick ever wrote…)
And if that doesn’t convince you, then let’s look at it on a smaller scale. How would you feel if you were locked up and didn’t know why? Wouldn’t you want someone to look at it again? Maybe ask a few questions? Yeah, I thought so.
I know I have strayed from my promised pragmatism into emotion here, but it is true.
Let’s think, for a moment, about Mr Neary. I have read that judgement a number of times and I know different people get different things from it. I am sure it haunts the dreams of many a human rights advocate and certainly I have heard Mr Neary senior speak at an event, and it is clear that the occurrences have had a significant effect on the family. (He is excellent, by the way, and I can recommend that you try to attend an event with him if you ever get the chance.)
Anyway, as I have spent most of my career in local authority, when I read it, I wince, sigh and think “Oh no, I see how this happened”. Because here is the thing, I don’t think anyone involved in that case thought they were doing anything other than the right thing. But it took challenge from an independent set of eyes for the focus to be brought back to Stephen and what was best for him.
So when professionals tell me they have done everything right and court challenge won’t achieve anything, my first thought is “I bet Mr Neary’s social worker said that too”.
Now don’t misunderstand me here, in the vast majority of cases the professionals I am working with haven’t done anything wrong. But I am reminded of the old adage that it is better to let 10 guilty men go free, than it is to put 1 innocent man behind bars. And I’m sorry, but it is better to put 10 diligent professionals through the inconvenience of proceedings than to let 1 rogue professional go un-scrutinised.
Yes, I know, it still feels personal. But no one is saying that because one person you have looked after needs something different, that every other case you’ve been involved with has been wrong.
Remember, it’s all about personalised care
So maybe it is personal after all….
(NB these will most definitely not go away with the implementation of the Mental Capacity Amendment Act 2019, but I’ll discuss the Liberty Protection Safeguards in a later post.)
For more resources about the Court of Protection, please see the Court of Protection category on our site.
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority