North Lakes Hotel, Penrith, Cumbria
Thursday, 25th June 2015
Justice for
people with disabilities
Gordon R Ashton OBE
Retired District Judge and
nominated Judge of the Court of Protection
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Family care
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family had to cope with support (if any) available
Lunatics
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confined to the asylum
Idiots and imbeciles
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hidden away from society
Discrimination
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accepted and acceptable - the norm
Human rights
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denied to mentally disabled people
Without capacity = no enforceable legal rights
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Community care
 responsibility moving from family to state?
Greater awareness of mental health problems
 less social stigma??
More people lack mental capacity
 population living longer
 more brain damaged babies survive
Equality laws
 include disability discrimination
Human rights
 mentally disabled people have these too
Paternalistic approach no longer acceptable
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What is it?
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care ‘in the community’
assessment of needs
provision to meet those needs
local authority facilitates
independent sector provides
Problems:
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rapid closure of ‘institutions’
lack of funding – not a cheap option
‘the pot more important than the person’
lack of decision-making procedures
Disabled people have greater expectations
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May be unintentional:
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Unwitting prejudice
Ignorance
Thoughtlessness
Stereotyping
Direct . . . or indirect


No longer acceptable
Increasingly UNLAWFUL
Special needs must be addressed
for disabled people
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“Eh! What! What did he say?
Did he say Disability Discrimination Act??”
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Enables fundamental human rights to be recognised and enforced
including:
 Article 2 – the right to life, which has implications for the health
services.
 Article 3 – the prohibition of inhuman or degrading treatment,
which is of particular relevance to the abuse and neglect of
vulnerable people.
 Article 5 – the protection of liberty, which may affect detention in
a care home or hospital.
 Article 6 – the right to a fair trial, which concerns participation
and ensuring an independent and impartial tribunal.
 Article 8 – respect for private and family life, home and
correspondence, which extends to bodily integrity, access to
information, confidentiality and sexual relations.
 First Protocol, Art 1 – protection of property, which has
implications for ownership, access to and control of property.
No discrimination within all rights
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Move away from a medical model of disability:
‘WHAT’S WRONG WITH HIM?’
. . . to a social model:
‘WHAT ARE THE OBSTACLES IN SOCIETY?’
“All too frequently other people make a judgment about what
is possible rather than looking for ways round a difficulty and
helping overcome the obstacles” [David Blunkett]
Recognise the difference between:
◦ senile dementia
◦ other mental illnesses
◦ acquired brain injury
◦ learning disabilities
◦ specific learning differences
Recognise mental capacity as a discrete topic
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Who are they?
It’s not a ‘them and us’ situation.
It could be:

your infirm parent

a mentally ill sister

your physically disabled brother

a brain injured friend

my son with learning disabilities
. . . or any of us when we get older!
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“Don’t worry, dear. It’s all quite level inside!”
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An encounter with the courts may be:
◦
◦
because of disability; or
completely unrelated thereto
The disability may be due to:
◦
◦
◦
◦
a physical impairment
a sensory impairment
a mental impairment; or
all of these (eg. infirm elderly)
Attitudes, facilities and procedures must not present an
obstacle to the attainment of justice
Equal opportunity rather than equal treatment
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People with mental disabilities and their
families/carers need lawyers who:
 understand their needs and cope with mental
incapacity
 offer practical legal services and have
experience of:
 financial management
 welfare, housing and mental health law
 community care and health care
 identify and act for the client:
 person giving instructions may not be the client
 eg son or daughter, attorney or deputy
 work with relatives or carers but:
 recognise conflicts of interest
 are aware of undue influence
Solicitors for the Elderly
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The last video-recording by Queen before Freddie
Mercury’s untimely death
In this song Freddie used the expressions:
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◦
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‘Driving on three wheels these days’
‘Not quite the shilling’
‘Knitting with only one needle’
‘One card short of the full deck’.
We all know what he means and could all add our
own phrases:
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◦
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◦
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‘Not right in the head’
‘Out of his mind’
‘Away with the fairies’
‘Bats in the belfry’
‘There’s a screw loose’
‘The lights are on but there’s no-one in’.
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Why do we assess capacity?
◦ some people cannot make their own decisions
◦ they need to be empowered and protected
Who assesses capacity?
◦ the person who needs to know
◦ child for parent, doctor for patient, solicitor for client
How do you assess capacity?
◦ apply appropriate test:
◦ on basis of adequate information
◦ at best time for individual (or when decision was made)
Presumption of capacity – on balance of probabilities
Court decides as a question of fact if a dispute
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
Not necessarily . . . but it may be wise

Must be given all necessary information
◦ including why assessment needed
◦ . . . and told the legal test to apply

Why involve doctor?
◦ Diagnose cause of incapacity
◦ Assess likely effect and prognosis
◦ Regarded as an expert - even if not!
IN CASE OF DOUBT - YES!
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Based on function not status
◦ eg. old, in care home or Downs Syndrome
Understanding not wisdom
◦ not outcome (quality of decision)
◦ simple explanations
Ability to:
◦ retain information
◦ make a choice based on that information
◦ communicate the decision
Tests are decision or issue specific
◦ no universal test of capacity
May be capable of one decision but not another
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P URPOSE
The primary purpose of the Act is to make provision for decisions to
be made on behalf of those who cannot make their own decisions
because of a lack of mental capacity:
 applies only to those who lack capacity because of impairment of, or
a disturbance in the functioning of, the mind or brain
 does not (directly) change any other existing statutory or judicial
definition of incapacity
 establishes the new Court of Protection
 combines the inherent jurisdiction of the High Court with that of
the former Court of Protection and extends to those who
previously were unsupported
 the former inherent jurisdiction is now extending to those who lack
capacity for other reasons!
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A SINGLE piece of legislation (distinct from Mental
Health Act) with:
TWO fundamental concepts:
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
definition of LACK OF CAPACITY
clarification of BEST INTERESTS
THREE areas of decision-making:
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personal welfare
health care [now combined with personal welfare]
property and affairs
FOUR levels of decision-making:
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Person acting reasonably for care decisions (s. 5)
Attorney under a lasting power of attorney
Declaration or decision by the Court of Protection
Deputy appointed by the Court of Protection
PUBLIC GUARDIAN
to provide support and supervision
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1. adults assumed to have capacity
–
–
unjustified assumptions outlawed
‘balance of probabilities’ approach
2. individuals helped to make own decisions
–
simple explanations
3. individual may make unwise decisions
4. a best interests approach to delegated
decision-making
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take into account wishes of individual and views of
others
not what decision-maker thinks is best
5. ‘least restrictive’ approach to intervention
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–
–
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delay decision until recover
only interfere if needed
make decisions at lowest possible level
decision preferred to deputy appointment
No more stigmatising as ‘Patients’
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The approach and principles of
the Mental Capacity Act 2005
apply to everyone
All lawyers and care professionals
must be aware of the implications
of this legislation whenever they
encounter someone whose
capacity may be impaired
The Code of Practice is an
essential resource
Not just a Court of Protection issue
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Need for Litigation Friend?
- Capacity to conduct proceedings
- Capacity to manage award
- Understanding: Frustration, impetuosity
Is an LPA suitable?
- Are you experienced at managing £1m+?
Who should be the Deputy?
- Long-term planning essential
- Relative may be too close and vulnerable to pressure
- Professional person jointly with relative?
Should the Schedule of Loss be followed?
- Act in ‘best interests’ utilising all available resources to
best advantage
WRONG to spend award too quickly
WRONG to preserve it for next generation
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Adults in hospitals and care homes fall into one of 3
categories:
1. those with capacity who consent
2. those compulsorily detained under the Mental Health
Act 1983
3. those who lack capacity to consent but are compliant.
Only a minority are detained under the Mental Health Act
1983 which provides safeguards.
What if those who lack capacity are effectively detained
(ie. not allowed to leave)? There were no safeguards
against inappropriate deprivation of liberty.
The House of Lords did not think this was a problem
(reversing the Court of Appeal):
R v Bournewood Community & Mental Health NHS
Trust, ex parte L [1999] AC 458 HL; [1998] 2 WLR
764, CA.
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Clearly there are dangers if a person can be
detained in a hospital or care home on the
grounds that they lack capacity especially if
there is no-one able and willing to challenge this
detention.
The European Court of Human Rights held that
if such detention amounted to a deprivation of
liberty there was a breach of human rights:
HL v UK [2004] 1 FLR 1019.
The Government had to comply so new
DEPRIVATION OF LIBERTY procedures were
introduced from 1st April 2009 by:
Mental Health Act 2007 amending Mental
Capacity Act 2005
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The structure is there but it all
depends on how we now implement it.
Pragmatic or legalistic?
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