...the website which provides up-to-date news and information on law, policy and practice developments relating to social and health care provision in the UK.
The main purpose of the site is the Care and Health Law database in which there is a lot of basic information, for free, about the significance of court cases and the legal framework for anyone involved in this area - people who use services, carers, providers, brokers, social workers, care managers and purchasers - whether their concern is social care, health care or human rights.
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November and December 2012
Care Homes lead the charge against interest rate swaps mis-selling scandal - Barclays Bank is being sued by Guardian Care Homes, a residential care home operator based in Wolverhampton, for up to £37 million over the alleged mis-selling of interest rate hedging products known as swaps. Many borrowers didn't realise what they would have to pay if lending rates fell significantly and that they would face substantial fees to get out of the arrangements. The trial will be a test case for thousands of small British firms which assert that they were mis-sold such swaps. The compensation scheme set up by the FSA, which allows banks to appoint an independent arbitrator to assess claims, has been criticised by businesses for being too slow and for lacking transparency. Guardian Care Homes says it has lost £12 million after being sold two swaps in 2007 and 2008 against two loans it took from the bank worth £70 million. Break fees of £25 million would be payable to avoid the contract. Barclays said Guardian had entered into the swaps with "sufficient understanding" as to whether they met its business objectives. Britain's financial regulator has estimated that about 44,000 interest rate swaps have been wrongly sold to UK companies since 2001.
Imprisonment for Contempt of Court, in relation to a vulnerable adult - in SCC v JM a person has been sent to prison for breaches of orders made by the Court of Protection under the inherent jurisdiction of the High Court. JM was an elderly man suffering from dementia. The conduct of one of JM’s children, WM, had given rise to substantial concerns and in 2011, injunctive relief had been granted forbidding the encouraging of JM to leave his placement or discuss moving back home or leaving the country, using or threatening violence against the man or any employee of the council or the care home, and intimidating, harassing or pestering any such person. WM was found in contempt of court for taking JM to see a solicitor to discuss his placement, having said the trip was for a contact visit; distributing a leaflet identifying him in relation to the case, in breach of rule 90/91 of the Court of Protection Rules; by discussing the proceedings despite it causing him distress; abusing and threatening LW the lead social worker, by email and by voicemail and by bringing her father to Court on the day of the judgment. The judge found that WM had no intention, “unless restrained by a severe measure by this court, of obeying the orders” and that she had sought to evade service of the application for committal for contempt.
When does s117 aftercare entitlement stop? www.lgo.org.uk - a report of a joint investigation by the Health Service Ombudsman and the Local Government Ombudsman about a complaint into the non-provision of section 117 aftercare has been published. The complainant asserted that her mother should not have had to fund her own care in a residential care home for the last 5 years of her life, because she had been sectioned 15 years earlier (she had suffered from depression since the 1950s). On discharge she had been supported at home, for 10 years, before becoming self-funding in a care home, although she had 5 more spells in mental hospitals as a voluntary patient. Mrs M’s physical and mental health problems were inter-related, but there was evidence that her later symptoms could be attributed to a more general deterioration that was possibly linked to symptoms of dementia. The joint investigation found there was no doubt Mrs M had had a severe and enduring mental illness over many years, but they did not see any evidence that her period of residence in a care home, in the last years of her life, was linked to aftercare. They found that the delivery of aftercare services for Mrs M under section 117 of the Mental Health Act, and her discharge from that provision, were not properly considered in accordance with relevant legislation and guidance; and the later explanations given about this by the Trust and by the Council were inadequate and contradictory. They found too that the procedure followed in discharging Mrs M from the CMHT in 2005 was not in accordance with relevant guidance. In the particular circumstances of Mrs M’s case, the investigators did not consider that the lack of a specific discharge from section 117 obliged the council or PCT to accept her as having been eligible for section 117 funding in 2004, many years after the section 3 detention was discharged, and they did not consider that the failures were the cause of significant injustice to Mrs M or Miss M.
Monitoring commissioned care packages is an essential council task! - in another LGO report, a complaint has been upheld against Kent County Council with significance for all councils. It did not properly investigate how a man had come to be seriously injured during an altercation with another resident of his care home. It took a safeguarding ‘investigation’, a complaints investigation, an internal Council investigation, and a complaint to the Ombudsman before a second internal Council investigation properly looked at whether the incident involving Mrs B’s father could have been avoided. The Council’s own second internal investigation found serious cause for concern in three areas: The Council had not reviewed Mr B at all in 2009 because of pressure on the Long Term Residential team and reviewed him only by post in 2010 – relying on a response from the Home to judge whether he was properly cared for and content. The Ombudsman recommended that the Council pay the daughter £7,500 and that councillors should have oversight of the monitoring arrangements for all the council’s contracted-for clients, referring back to a previous finding of the LGO about monitoring responsibilities arising out of the death of one of Blackpool’s clients, when the home care worker failed to attend when due.
Another successful providers’ judicial review of contracting behaviour - Newcastle City Council is planning an appeal, having lost a judicial review of its negotiation stance and the rates it proposed paying to some care home providers in the area. The decision overturned by the court was effectively a requirement to sign contracts at a rate that was not agreeable to the providers. The threatened consequence of refusing to cut fees was the prospect of no more placements, but that is the normal consequence of any two parties’ failure to agree terms. In this situation though, the impact would have been felt not only by providers, but by people attempting to exercise their Choice of Accommodation rights, and that is what made all the difference… The Judge said that it must be unlawful to refuse to place new residents with any care home which had not agreed to the discount that the council was seeking.
Local Government Ombudsman’s decision in a complaint about a top-up – a family complained about being asked to find a top-up when put under pressure to assist hospital discharge for a dependent relative. Government guidance states councils should set their ‘usual rates’ at a level sufficient to allow them to meet assessed care needs and to provide residents with the level of care services required. A suitable care home place was not available at the Council’s usual rate when Mrs E needed to be discharged from hospital. Government guidance states that where a home is not available at the Council’s usual rates, it should make suitable alternative arrangements and seek no contribution from the individual other than their assessed contribution. The Council’s view was that a place was available at Care Home C, so it felt Mrs E’s family actively chose more expensive accommodation at Care Home B. In fact, Care Home B was the least expensive accommodation available at the time, and the family reached their decision because there was no availability at the Council’s usual rate, at a time when the Council needed to find suitable accommodation for Mrs E. Given the apparent lack of accommodation in the Council’s area at the Council’s ‘usual rate’, the LGO asked the Council to comment on the appropriateness of its current fees and to review whether there was a need to change the rate to reflect the market conditions in its area
Birmingham Council wrongly started adult protection investigation - the LGO has found Birmingham City Council wrongly started an adult protection investigation into the affairs of a man’s elderly aunt. The Council failed to treat the woman’s nephew “fairly and within the rules of natural justice… It caused him the considerable injustice of being the suspected perpetrator in an unnecessarily and unreasonably prolonged adult protection investigation.” She said “Although it acted on my recommendations, the Council took years to accept it had been wrong. In the circumstances, and even though the original events happened some years ago, I decided to issue this report as a matter of public interest.” Mr A is active in public life and holds positions of responsibility in his community; he believed public services should be open to challenge and learn from mistakes. Mr A was not satisfied with the Council's response to his complaints. The Ombudsman had met the Council's Chief Executive and Director of Adult Social Care, who accepted there had been maladministration and agreed to apologise to Mr A and pay him £350 in recognition of his time and trouble. The Director met Mr A to discuss the issues raised, but unfortunately that did not resolve matters. The Director maintained that officers had been right to start an adult protection investigation. That was contrary to the Ombudsman's conclusion and Mr A could not accept it. The Ombudsman issued a draft report. The LGO said that the council ultimately capitulated on the basis of no more evidence than was set out in the draft report, and which should have existed in the Council’s own records and had been supplied directly by Mr A.
No special right to treatment on religious grounds - a hospital trust can withhold life-saving treatment from a severely brain-damaged Muslim man if his condition deteriorates, a court has ruled. Doctors argued it would be unfair to resuscitate the patient, known as Mr L, if his condition worsened. His family said not taking all feasible steps to preserve life was against their Muslim faith but the law does not enable religious faith to provide a legal basis for forcing a professional clinician or a hospital to do something it does not believe to be in the best interests of a person, or defeat someone else’s chance of service provision. The Court of Protection said it would be lawful to withhold treatment as it would not prolong life "in any meaningful way". The judge added: "It would result in death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit." The Trust said that "Importantly, this case has never been about whether the trust should continue to provide care and treatment for the patient, but about the actions and medical interventions that should be taken in the event that his medical condition deteriorates."
August, September and October 2012
Sex offender registration appeals introduced - Sex offenders in England and Wales have a new right to appeal against their inclusion for life on the Sex Offenders’ Register since 1st September 2012. Offenders are able to seek a review 15 years after they have left prison. Individual police forces will consider any reviews. The Government has estimated that up to 1,200 sex offenders will be eligible for a review each year. The move follows the Supreme Court’s ruling in F and Thompson v. Secretary of State for the Home Department that “the indefinite notification requirements in s.82(1) of the Sexual Offences Act 2003 are incompatible with art.8 of the European Convention on Human Rights in so far as they do not contain any provision for the review of the justification for continuing the requirements in individual cases.”
Securing best value for NHS patients - a consultation seeking views on proposals for regulations to protect patients’ interests by ensuring that commissioners always deliver best value. Closing date 16th October 2012. Commissioners' consultation
The future of the Independent Living Fund - a consultation wanting views on the impact that closing the Independent Living Fund in 2015 would have on users, local authorities and the wider care and sup-port systems across the UK. The Government would also like views on how closure could be managed in a way which would minimise disruption to the care and support needs of existing Independent Living Fund users. Closing date 10 October 2012. Future of the ILF
The draft Care and Support Bill creates a single law for adult care and support, replacing more than a dozen different pieces of legislation. It provides the legal framework for putting into action some of the main principles of the White Paper, ‘Caring for our future: reforming care and support’, and also includes some health measures. The consultation closes on the 19th October. Details about the changes to the care and support system, the White Paper and the draft Bill can be found on the Caring for our future website.
Public Health - the DH has set out the health intelligence requirements for local authorities and the actions local areas may wish to take to support their new public health duties from an information and intelligence perspective. This information is available as a series of separate factsheets and as a single combined document. Public Health - all factsheets
Davis v West Sussex County Council: August 2012 – a council loses a judicial review regarding the fairness of its safeguarding process and clarifies providers’ rights - free link: Davis v West Sussex CC – commentary available via a Hot News registration – select ‘Safeguarding’.
CC v KK and STCC – a case on the relationship between deprivation of liberty and a refusal to fund care at home, and about what is required by way of information about the realistic options, for an assessment of capacity to consent to arrangements for care and support – given that the option of living at home was too expensive for the authority to be willing to make it their public law offer for an elderly patient with dementia, but with very strong feelings about going home during the day – free link: KK's case - commentary available via a Hot News registration – select ‘Choice and Control’.
Age discrimination – briefing on the introduction of the ban, within the NHS - from 1 October 2012, the Government will fully implement the ban on age discrimination enshrined in the Equality Act 2010, giving protection against age discrimination in services, clubs and associations and in the exercise of public functions. NHS and the ban on age discrimination.
Anorexic to be allowed to die despite lack of mental capacity
August 2012 - A woman of 30 known as L is to be allowed her wish to die, through starvation within a palliative care regime, because it is no longer in her best interests to be kept alive, even though she could have been sectioned, and force fed, or could have been force fed under the Mental Capacity Act. She has suffered from anorexia since the age of 12, after being abused as a child, and has already been the subject of a best interests order, which she has apparently found the a means to defeat, by positvely consenting to a smaller amount of calorific intake than was necessary to bring about improvement. See the case report within the cases and topic sections of the Law Database shortly - Right to Die.
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