NHS Trust changes its Coronavirus visits policy following legal challenge
NHS Trust changes its Coronavirus visits policy following legal challenge
Our very own Stephanie Oxley has been representing the mother of a young man detained under s.3 Mental Health Act 1983 in a hospital run by Hertfordshire Partnership University NHS Foundation Trust. The young man has autism, learning disabilities and anxiety. He was detained in the hospital over 2 years ago. The local authority is in the process of arranging a community placement for him, and all parties are working for him to be discharged in the next month.
The young man’s parents have visited him twice a week in hospital since he was admitted, some 27 months ago. Invoking the Coronavirus pandemic, on 15 March 2020, the Trust banned the parents from visiting their son, who has been assessed as having capacity to make decisions about contact.
Since then, the young man has been able to telephone his parents roughly twice a week. He had not previously communicated with his parents via telephone. The parents noticed that their son found it difficult to communicate with them on the phone. They believed that their son was becoming distressed by not having any face-to-face contact and that his behaviour was becoming more agitated and challenging, such that it may jeopardise him being discharged into the community. Via the telephone they could not see his face to gauge how he was feeling and provide emotional support and reassurance to him.
The Trust refused to arrange other means of communication, telling the parents that if they bought a mobile phone for their son, they would let him use it. The parents cannot afford to buy themselves or their son smart phones or tablets.
On 1 April 2020, Stephanie instructed Dr Oliver Lewis of Doughty Street Chambers to assist with challenging the Trust’s policy and guidance on behalf of her client. On 2 April 2020, a letter before claim was sent to the Trust informing it that an application for judicial review would be made unless the Trust either (i) provided the means to have virtual communications or (ii) allowed on-site visits with a 2-meter distance.
It was argued that the Trust’s policy of banning everything but telephone-only communication
- breached the son’s and his parents’ rights under Article 8 European Convention on Human Rights (right to respect for private and family life, home and correspondence) because the policy was disproportionate to achieving the legitimate aim of reducing the risk of patients and staff being infected with Coronavirus; and
- indirectly discriminated against people with disabilities (in particular people with autism and/or learning disabilities), because it placed people at a particular disadvantage compared with people without disabilities, contrary to s.19 Equality Act 2010.
On 8 April 2020 – the 10th anniversary of the Equality Act 2010 - the Trust confirmed it will:
- provide the young man with an iPad set up for Skype and Zoom; and
- amend its policy on visits to reflect its duty to facilitate the use of online communication between patients and their relatives.
Although it was argued that the detaining authority is under a positive duty to supply the smart phone or a tablet to both the young man and his parents so as to facilitate contact between them, the Trust has refused to provide the parents with equipment. In the meantime, the parents have borrowed an iPhone from a relative to be able to use Skype and Zoom.
Commenting on the litigation, the parents said, “Although online contact is not the same as visiting our son, we’re pleased that we will be able to see each other virtually, and we hope that this will help his wellbeing and mental health. We hope that other families do not have to take legal action before NHS Trusts amend their policies to take account of the needs of loved ones with autism or learning disabilities.”
Dr Oliver Lewis is clerked by Emily Norman: [email protected].
Supreme Court MM v Secretary of State for Justice [2018] UKSC 60, Bison acted for the Appellant.
In November 2018, the Supreme Court handed down its long-anticipated judgment in the case of Secretary of State for Justice (Respondent) v MM (Appellant) [2018] UKSC 60. The decision of the Supreme Court was that neither the First-tier Tribunal (‘FTT’ or the MHRT for Wales) nor the Secretary of State for Justice (‘SSJ’) are permitted to impose conditions of discharge which would amount to a deprivation of liberty (‘DOL’).
In effect, the decision meant that restricted patients who lacked capacity could still be discharged conditionally into a care plan that was so restrictive that it amounted to a DOL, so long as the DOL was properly authorised by the Court of Protection, but that those restricted patients with capacity could not be conditionally discharged into the same care plan. For restricted patients with capacity to decide on their care and support arrangements, the effect of the Supreme Court’s decision is that they cannot in practice be conditionally discharged if they require a care plan in the community that amounts to a DOL.
Following the Supreme Court’s decision, the findings of the Independent Review of the Mental Health Act were published. One of their recommendations was for the government to legislate to “give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community”. This was one of many recommendations not accepted by the Government.
In January 2019, the SSJ responded to the Supreme Court’s decision by issuing guidance on discharge conditions that amount to a deprivation of liberty.[1] Their guidance repeated that conditions that amount to a DOL will be unlawful, other than in cases in which the patient lacks the relevant capacity and the DOL is authorised. In cases of patients with capacity, they recommend that the Responsible Clinician requests authorisation for an extended period of section 17 leave so that the patient can leave hospital and reside in appropriate accommodation with the appropriate package of care. They would, all the while, remain liable to be detained under section 37/41.
Anecdotally, we have found that this approach has led to a number of issues, including (but not limited to):
- the patient would remain “in limbo”, liable to be detained, but authorised to be away from the hospital for up to a year at a time. This is likely to have a psychological impact on the patient, but also an impact on care providers who require care arrangements to be predictable in the longer-term;
- the patient remains an inpatient and so would theoretically not have access to housing benefit, which has a knock-on effect on the availability of accommodation; and
- such an approach would require the local clinical commissioning group (‘CCG’) to fund both a hospital bed and a community placement, at great cost.
These problems will mean that a significant proportion of the inpatient population is at real danger of becoming stuck in the system. In cases where the treating team has identified that no further treatment is required in hospital, but in the long term the patient will require a DOL, for the patient’s or the public’s safety, the patient can no longer be lawfully conditionally discharged by the FTT/MHRT/SSJ, nor sent on extended leave.
Theoretically, it will be possible for the Secretary of State for Justice or the FTT/MHRT to grant a conditional discharge that does not impose a conditional discharge. However, a Tribunal panel is unlikely to agree to exclude a condition that imposes a deprivation of liberty if they believe that a DOL is necessary in order to protect the patient or the public.
Meanwhile, the High Court has dented the impact of the SSJ’s guidance on those lacking capacity. The SSJ set out their view that cases in which patients lacking capacity require a DOL would fall into one of two groups: those who require the DOL in their best interests (e.g. due to an inability to look after themselves), and those who require a DOL in order to protect the public. For the former, they suggest that seeking an authorisation under the MCA alongside a conditional discharge would be appropriate. For the latter, they suggest that the responsible clinician seeks authorisation for extended leave as with patients with capacity. In Birmingham City Council v SR; Lancashire County Council v JTA [2019] EWCOP 28, Mrs Justice Lieven DBE criticised the distinction made by the Secretary of State for Justice between the two groups above. The Court was “not convinced” that the distinction “stands up to close scrutiny”, given the significant overlap between the patient’s interests and the protection of the public. It is in the patient’s interests, the Court accepted, not to commit further offences or to place himself at risk of recall under the MHA [paras 41-42].
We envisage, therefore, that there will be a rise in the number of cases of restricted patients challenging findings that they possess the relevant capacity, and the number of cases in which restricted patients with capacity apply to the Tribunal for an absolute discharge from the MHA so that they can lawfully offer their consent to such packages of care without the conditions of discharge or liability to be recalled to hospital. Ordinarily, the chances of a restricted patient obtaining an absolute discharge from the FTT/MHRT are slim. If the patient requires a DOL on discharge, it is likely that they have a psychiatric diagnosis and considerable needs and risks. To succeed in an application for absolute discharge, the FTT/MHRT must be satisfied not only that the patient no longer requires inpatient care, but also that it is not appropriate that they remain liable to be recalled.
Case summary by Charlie Barrass- Evans, A Law Society Accredited Mental Health Panel Member. Mr. Barrass-Evans was involved in the SC appeal and instrumental to our case appeal preparation at The Supreme Court.
[1]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/771004/DoL_guidance_v1_Jan2019.pdf
For further information, get in touch with Bison mental health solicitors, call 01252 268 068 or complete our contact form.
Child Custody in the UK – What Are Your Rights and Responsibilities?
It’s first important to understand that whilst the term “custody” is the most commonly-used and well-known terminology around the contact with and care of a child, courts no longer refer to it in this way. “Custody” has had many names, including residency and contact orders, but courts now refer to all contact with a child as a “Child Arrangements Order”. The term “custody” is now rarely used within legal proceedings.
The equivalent of having custody of a child now would be to have a “live with order”; the other parent would have a “spend time with order”. These orders both come under the term “Child Arrangements Order”. However, for the purpose of this blog we will continue to use the term “custody”.
As you can see on our Child Law page, courts follow the Welfare Checklist when it comes to determining child custody. Family law and those who interpret it are rightly mainly concerned with the well-being, rights, wishes and feelings of the child above all else. The central point of any Child Arrangements application is “the welfare of the child is paramount”.
However, it’s important to fully understand what rights you have as a parent, what the law is regarding custody, and what you can do to help influence decisions that a court might make.
Knowing not just your rights but your responsibilities can also be a major factor in preventing disputes with your ex, and in keeping the whole process as amicable as possible.
What the law says
The 1989 Children Act defines parental responsibility as follows:
“All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
The mother automatically has parental responsibility and won’t lose it even if divorced. If the father was married to the mother when the child was born then he has parental responsibility as well. Following the change in the law, for children born after 1 December 2003, a father will also have parental responsibility if he is named on the birth certificate, even if he wasn’t married to the mother. And the father has it if he, or he and the mother, registered a parental responsibility agreement with the court or there was a court order.
If both parents are deemed to have responsibility then neither the mother nor the father have the automatic right for their child to live with them. In the past, the courts more often favoured the mothers, but with men often now more involved with childcare and more women working, courts often see joint custody as the way forward.
Even so, many fathers, rightly or wrongly, believe that they mothers will automatically be looked on more favourably after as separation or divorce. There’s also currently a campaign to change the law to bring in a legal assumption that the mother and father will share parenting of their child or children.
In the meantime, whether you’re a mother or father, it’s important that you get child custody advice at an early stage rather than waiting until the situation becomes complicated or acrimonious.
Our child law solicitors appreciate that every case is different. We will always listen carefully to what your situation is, along with your needs and wishes, in order to provide you with guidance on the best way forward.
Parental responsibility – agreements and orders
There are many other legal issues around the issue of parental responsibility. For example, just because you don’t have it doesn’t mean you’re absolved of all responsibilities towards your child – you may well have a duty of care in the form of child maintenance. You have rights too – for example, to apply for certain court orders.
Unmarried fathers can also, with the consent of the mother, obtain a Parental Responsibility Agreement that gives you parental responsibility.
If the mother refuses to allow the unmarried father to be registered or registered on their child’s birth certificate, or refuses to sign a Parental Responsibility Agreement, then he can apply for a Parental Responsibility Order.
Child custody legal advice – book a free consultation
As you can see, the law is complex and there are many variables that need to be taken into account. We’re here to help you clarify your options, and to decide the best path to take. That’s why we offer a free initial consultation of 30 minutes with one of our child custody lawyers. (Follow the link to view our Family Law team)
Our main office is in Aldershot, Hampshire, but we also have offices in Manchester, Cambridgeshire, the Isle of Wight and Somerset – whichever is most convenient for you.
To book your consultation, please email [email protected] or call 01252 268 168.
Our Family Lawyers can Help You Make a Fresh Start in the New Year
As well as being a time for celebration, Christmas often offers a period of reflection – on relationships as much as anything.
For some, family tensions can come to a head at this time of the year, for a number of reasons.
One is that couples tend to be in close proximity throughout the Christmas period. It’s less easy at this time to live more-or-less separate lives, and there’s the absence of distractions such as work or school. The presence of in-laws or other family members can also prove difficult for many.
Another is the financial strain, with December being an expensive month, what with the cost of presents, food, drink and entertaining.
Many of us also over-indulge at Christmas – and excess alcohol is frequently a factor in marital strife.
Some people, particularly those with children, will wait until after the celebrations are over to avoid spoiling Christmas itself. But they will be looking to make a change as soon as possible afterwards. After all, the turn of the year is traditionally a time for resolutions and for fresh starts.
For all these reasons, it’s therefore not surprising that divorce rates soar at the beginning of the new year.
Divorce and Separation – Your Options
The main reason cited for divorce is ‘unreasonable behaviour’. This generally refers to a spouse’s actions over a prolonged period. Other legally-recognised grounds for divorce are adultery, five years’ separation (or two years’ separation if agreed by both parties), or two years’ desertion. (Desertion can be difficult to prove - it might be easier to use unreasonable behaviour or say you’ve lived apart for 2 years). In addition couples must have been married for at least a year before they can divorce.
However, divorce is not the only option. Many people opt for a trial separation to begin with. A separation can be recognised in law as well. You can also avoid legal proceedings completely, at least to begin with, and opt for a separation agreement, which we can help you draft. Please note that while a separation agreement can be legally persuasive, it’s not binding upon the court until it has been formalised into a consent order.
If you’re cohabiting rather than married, you have certain rights if you split up, although not as many as if you were wed. If you’re in a civil partnership, then you will benefit from broadly similar rights to being married.
If you have children, then our child family law professionals can assist in legal advice and arrangements concerning their welfare.
Whatever your status and whatever you’re considering, we can advise you on your options. We can advise you on the personal and financial side, as well as possible agreements you might want to make. More information is on our Divorce and Separation page
Getting an injunction against a family member
The holiday period can also be the setting for a further dark shadow – domestic abuse. Those who are already separated or divorced will often feel particular stress at being away from their children or former partner. Even if you are still together, factors such as enforced close proximity, alcohol or financial issues can lead to abusive incidents.
Our family law team can help you obtain a suitable injunction – either an Occupation Order or a Non-Molestation Order. These are available to both married and unmarried individuals. For details, please see our Family Court Injunctions page
A Free Consultation
Bison Solicitors offers a free half-hour consultation with a specialist family lawyer if you are considering a separation or divorce. We’re based in Aldershot, Hampshire, with several offices elsewhere in the UK.
We appreciate that every person and every relationship is different, so our first task will be simply to listen.
Then we can help you consider your next steps at a difficult time. Even if your new year isn’t particularly happy right now, we can help you find peace and happiness in the months and years to come.
If you need a fresh start then book your free consultation, please email [email protected] or call 01252 268 168.
Brexit and Your Legal Status in the UK – What Next?
The election of the Conservative government and its large majority means that Brexit is due to leave the EU on 31st January, 2020. The exact shape of Brexit and the potential deals involved is likely to occupy the government for much longer.
In the meantime, the situation for people living in the UK who aren’t British citizens is going to remain similarly uncertain for some time to come, with the possibility of a no-deal Brexit further muddying the waters.
Immigration and residency issues
Whether you’re looking to come and live or work in the UK, or are already here, post-Brexit immigration law and your rights are still far from settled. The issues regarding registration requirements are likely to be particularly complex.
At present, a points-based system regulates immigration from outside the European Economic Area (EEA), which consists of EU and other European countries. The government has been proposing a new Australian-style points system, but the nature of this has so far yet to be made clear.
Speculation and leaks have suggested that, in some ways, the system will be similar to the current points-based system. You can view this on our Immigration Law page.
Tier 1 (highly-skilled migrants) will remain broadly similar.
Tier 2 (skilled migrants) will instead be ‘skilled workers’ and in most cases will require a specific job offer.
Tier 3 (low-skilled workers) has already been abolished under the current system. Tier 4 (students) and Tier 5 (temporary workers) will be ‘sector-specific rules-based’ – in other words planned centrally to match demand from specific areas of the economy.
But at the moment, nothing has been formally announced.
Rights for workers is another complex issue that’s likely to become only more complicated in the months ahead. That’s the case whether you work in an EU country, are an EU citizen working over here, or are an employer of EU nationals.
Whatever happens, you can be sure that our professional Brexit solicitors will be here to clarify, advise and, above all, help.
Brexit and Family Law
Currently, there’s no agreement for European family law legislation to continue on a reciprocal basis between EU member states and Britain after withdrawal takes place.
There are many issues that could potentially arise after Brexit if you are divorcing or separating and one of you has connections with an EU state.
Here are just a few questions that could arise with a no-deal Brexit:
- How will a maintenance order be enforced if my former spouse or partner lives in an EU country?
- In what ways will Brexit affect my prenuptial agreement?
- What protections will I have if my ex moves to an EU country and wants to take the children there?
- If my partner is from an EU country, where will a divorce take place? Will there have to be duplicate proceedings or will a UK divorce suffice?
- Will my same-sex marriage or civil partnership be recognised by EU states after Brexit?
- I’m from an EU member country. What rights do I have to stay in the UK after my divorce from a British citizen?
Our family law team will be able to advise you on these and other issues related to Brexit. For more information, see our Family Law section.
Softening the impact of Brexit
The cost of Brexit and its financial impact, positive or negative, will be debated for many years to come. But we believe that whatever happens, those at the sharp end should not suffer unduly, whether from uncertainty or financial loss. That applies to whether you need professional advice, or are making a UK visa application, or anything else related to Brexit.
Most of our work is funded by legal aid, and, for private clients, you’ll find that our fees are substantially lower than those charged by most other law firms. We’re based in Aldershot, Hampshire, and have offices all over the UK, which means we can likely help you wherever you are.
For more details, please call +44 (0)1252 268 068 or fill in our contact form.
Ancestry Visas – A Little-known Route to Living and Working in the UK
The discussions surrounding Brexit have often focused on the matter of passports and citizenship. It is well-known that if you have Irish grandparents then you qualify for an Irish passport. The number of applications for Irish passports/citizenship via the ancestry route have rocketed over the past couple of years.
What is not so well known is the “ancestry” criteria for a visa that allows an individual to live and work in the UK. Citizens from Commonwealth countries who are able to show that one of their grandparents were born in the UK, Channel Islands or the Isle of Man, can apply for a visa, allowing them to work in the UK unrestricted.
The Ancestry Visa basically provides the applicant with a five-year visa that allows them to take up employment or study in the UK, without any restrictions. The applicant can also change employers, without having to fill in a new immigration application.
The requirements for an application under the Ancestry route are both clear and at times open to interpretation. Note that step-parents and their lineage are excluded from the criteria. The main points of the criteria that need to be met, with some of our own comments and queries, are:
- the applicant needs to be a Commonwealth citizen.
- applying from outside the UK.
- must be able to prove that one of their grandparents were born in the UK.
- the individual is planning on living and working in the UK. (why would they apply otherwise?)
- are aged 17 or over.
- have sufficient funds to support themselves and any accompany dependants during their time in the UK.
Sufficient funds is one of those terms that is heavily open to interpretation and provides fertile grounds for the immigration focused legal profession, even though the Government does provide its own criteria over what is regarded as sufficient! Please also note that the applicant cannot access public funds on this type of visa.
The criteria for what are accepted as evidence of a grandparent being born in the UK is covered by three areas. The grandparent must have been born:
- In the UK, including the Channel Islands and the Isle of Man.
- Before 31 March 1922 in what is now Ireland.
- On a British-registered ship or an aircraft.
We are curious as to how many grandparents would have been born on an aircraft given i) the lack of access to flights at the time and ii) just the chances of being born on an aircraft full stop and iii) what if the aircraft was stopping over at a foreign country at the time?
Interestingly there is no provision to switch to this visa if the individual is already in the UK under the rules governing another type of visa. Presumably the lack of provision to switch it partially down to the earlier criteria that the applicant must be outside the UK when making an initial application.
With regard to dependent family members, they are allowed to accompany the successful applicant and they can also apply for settlement after living and working in the UK for the five years stipulated by the Ancestry Visa. They will need to satisfy the requirements of settlement. Even if they are not able to meet the settlement requirements, there is an option to extend the Ancestry Visa for a further five-year period.
If you need further assistance with your Ancestry Visa, get in touch with Bison Solicitors in Aldershot. We also have offices in Cambridgeshire, Isle of Wight, London, Oldham and Taunton.
Call us on +44 (0) 1252 268 068 or complete our contact form.
Liberty Protection Safeguards Scheme
An overview of the new Liberty Protection Safeguards scheme ("LPS"), set to come in to force in October 2020.
The Mental Capacity Act 2005 provides for situations where a person who lacks capacity can lawfully be deprived of their liberty within a care home or hospital setting. Associated case law provides the circumstances which amount to a deprivation of a person’s liberty. At present the process for authorising the deprivation of a person’s liberty in those settings, is governed by the Deprivation of Liberty Safeguards (DoLS), a set of rules contained within Schedule A1 of the Mental Capacity Act 2005. However, now that the Mental Capacity (Amendment) Act 2019 has received Royal Assent and become law, this is all set to change.
The DoLS are due to be replaced by the Liberty Protection Safeguards (LPS) from 1st October 2020, at which point no new standard or urgent authorisations under the DoLS will be made. Existing authorisations will be permitted to continue until their expiry date, when a new authorisation under the LPS will then be required.
What are the Deprivation of Liberty Safeguards (DoLS)?
The DoLS are the rules which must be followed when an adult without mental capacity to consent to the arrangements for their care and residence (referred to as ‘P’) is deprived of their liberty. P is considered to be deprived of their liberty if they meet the following requirements:
- They are under continuous supervision and control; and
- They are not free to leave.
This is a test implemented by the Supreme Court in a case known as Cheshire West and is referred to as the “Acid Test”. If both elements of this test are met and P lacks capacity to consent to being deprived of their liberty, the relevant local authority, in their role as Supervisory Body, may make a standard authorisation in order to legally detain P in a care home or hospital.
When a standard authorisation is in force in relation to P a representative is appointed, called the Relevant Person’s Representative, whose role is to visit P regularly and consider whether they are objecting to their deprivation of liberty and whether it is in their best interests to make an application to the Court of Protection to challenge the standard authorisation. This person can be a family member, friend, or a professional advocate.
In circumstances where P is deprived of their liberty in a location other than a care home or hospital, no standard authorisation can be made by the Supervisory Body, who must instead make an application themselves to the Court of Protection in order to authorise P’s deprivation of liberty.
How are the LPS different from the DoLS?
There are three major differences between the DoLS and LPS regimes.
- The LPS can be used to allow the Responsible Body to authorise a deprivation of liberty in any setting. This means that the Court of Protection will no longer hear cases requesting authorisation for deprivations of liberty in the community, as these will now be able to be authorised by the Responsible Body in the same manner as a deprivation of liberty within a hospital or care home environment.
- Authorisations made under the Liberty Protection Safeguards Scheme will be portable and variable. Unlike standard authorisations under the DoLS, which are location specific and expire if P moves to a new placement, the LPS will allow the Responsible Body to vary an authorisation if it is reasonable to do so. This will mean that, for example, an authorisation can be granted for P to be deprived of their liberty in Care Home X, but P can then be moved to Care Home Y if the responsible body thinks it is reasonable to do so and no new authorisation will be required.
- The LPS will apply to 16 and 17 year olds, unlike the DoLS, which only apply to those aged 18 years and over. This will bring the law on deprivation of liberty into line with the rest of the Mental Capacity Act 2005, which (with some limited exceptions) applies to those aged 16 years and over.
When can a Responsible Body make an authorisation under the LPS?
A Responsible Body may only authorise arrangements that give rise to a deprivation of liberty when P lacks capacity to consent to the arrangements, P has a mental disorder with the meaning of section 1(2) of the Mental Health Act 1983, and the arrangements are both necessary to prevent harm to P and proportionate to the risk and seriousness of harm occurring.
When considering P’s capacity and whether they have a relevant mental disorder, the Responsible Body is permitted to rely on previous assessments if it is reasonable to do so. They are required to consult with a number of people before authorising the arrangements, unless they consider that it is not appropriate or practicable to do so. These include P, anybody named by P as somebody they would like to be consulted, anybody engaged in caring for P or interested in their welfare, any donee of a lasting or enduring power of attorney, any deputy appointed by the Court of Protection, any appropriate person and any independent mental capacity advocate (IMCA).
Before authorising the arrangements, the Responsible Body must also complete a pre-authorisation review, which must be carried out by a person who is not involved in the day-to-day care or treatment of P and does not have a prescribed connection with the care home in which P lives. This person can be either an Approved Mental Capacity Professional (AMCP) or another health or care professional which will be set out in the statutory guidance when it is available.
It is also permitted, in the case of arrangements proposed to take place in a care home and where P is aged 18 years or older, for the Responsible Body to decide that the care home manager should arrange the necessary assessments and evidence to present to the Responsible Body, which will then decide whether to make an authorisation on the basis of the information submitted.
What is an AMCP?
The role of AMCP – Approved Mental Capacity Professional – is a new role which is similar to that of a best interests assessor under the DoLS, but which expands upon that role. The government have indicated that all professionals who are currently eligible to be best interests assessors will be eligible to be AMCPs.
Local Authorities will be responsible for approving individuals AMCPs and ensuring that there are enough approved AMCPs for their local area. The government is expected to prescribe, by way of regulation-making powers, the criteria for approval of AMCPs and bodies that may approve their training, however these regulations are not yet in place.
The LPS requires that a pre-authorisation review must be done by an AMCP in the following circumstances:
- When it is reasonable to believe that P does not wish to live or receive care or treatment at a particular place;
- The arrangements proposed involve P receiving care or treatment mainly in an independent hospital; or
- The Responsible Body refers the case to an AMCP who accepts the referral.
What is an IMCA?
An IMCA – independent mental capacity advocate – is an advocate who has been specially trained to support people who lack capacity to make important decisions for themselves, such as where they should live or whether they should receive medical treatment.
Under the LPS a Responsible Body has a duty to take reasonable steps to appoint an IMCA if P has capacity to consent to an IMCA being appointed and requests one. They must also do so if P lacks capacity to consent to the appointment of an IMCA, unless the responsible body is satisfied that it would not be in P’s best interests to be supported by an IMCA.
However, this duty does not apply when there is another appropriate person to support P, such as a family member or friend. An appropriate person must consent to being appointed to the role and it cannot be a professional, or somebody who is paid to care for or provide treatment to P. P must consent to the appointment of the appropriate person if they have capacity to do so, or if they lack capacity to consent the Responsible Body must be satisfied that it is in P’s best interests for the appropriate person to be appointed.
How long does an authorisation last?
Under the DoLS a standard authorisation cannot last more than one year and it cannot be renewed. At the expiry of a standard authorisation a whole new application and assessment process must take place before a new standard authorisation can be granted.
Under the Liberty Protection Safeguards Scheme an authorisation can be granted for an initial period of up to 12 months, after which it can be renewed for a second period of up to 12 months, and then for periods of up to three years at a time.
In order to renew an authorisation the Responsible Body must carry out consultations before renewal and be satisfied that the conditions for the authorisation are still met and that it is unlikely that there will be a significant change in P’s condition during the renewal period which may affect whether they continue to be met.
Authorisations must be reviewed regularly, and in particular:
- before an authorisation is varied (or as soon as practicable after variation);
- if a reasonable request is made by a person who has an interest in the arrangements;
- if P becomes subject to mental health arrangements (as the LPS cannot be used for psychiatric treatment of a P who is detained under the Mental Health Act); or
- if there has been a significant change in P’s condition or circumstances.
There is no formal process by which authorisations will be terminated under the LPS. An authorisation ceases if the Responsible Body believes or ought reasonably to suspect that the conditions are no longer met.
How can an authorisation be challenged?
In the same manner as an application can be made under s.21A of the Mental Capacity Act 2005 to challenge a standard authorisation under the DoLS, the LPS provides for P, their IMCA or their appropriate person to apply to the court to challenge an authorisation.
When such an application is made the Court of Protection can consider whether the Liberty Protection Safeguards Scheme apply to the arrangements in question, whether the conditions for authorisation are met, the duration of the authorisation and what the authorisation relates to. The Court of Protection can then vary or terminate the authorisation, or can direct the Responsible Body to vary it.
Further information about the new Liberty Protection Safeguards Scheme including preparation for implementation and details on the associated Code of Practice can be found here
By Lindsay Da Re
Solicitor - Human Rights & Court of Protection
Domestic Abuse – Getting Tough at a National Level
Earlier this year the Government announced that it will make it a legal duty of Councils across England to provide safe and secure locations for victims of domestic abuse. The situation has been a bit of a “post code lottery” with facilities varying widely depending on where you are living. The Government is looking to standardise access to safe-houses and accessible help for victims of domestic abuse, across the country.
Up to this date there has never been a statutory definition of domestic abuse. The Domestic Abuse Bill looks to not only provide a definition but also to include, for the first time, financial abuse and non-physical controlling and coercive abuse.
What impact will the Domestic Abuse Bill have on family court proceedings? Not surprisingly if more “behaviours” are identified as domestic abuse then there should be an increase in allegations of domestic abuse and, in particular, children proceedings. The courts consider that domestic abuse (in the widened definition) is harmful to children whether they are subjected to domestic abuse or witness one of their parents being abusive to the other parent or live in a home in which domestic abuse is perpetrated. It is perceived that children may suffer harm directly from the abuse of a parent, or indirectly where the abuse impedes the parenting capacity of either of the parents. This widening of the definition of abuse has been largely welcomed by the legal profession but the problem is that the implementation of the widened definition is being hampered by the lack of resources within the family courts.
The rules governing how the Court behaves during family law and in particular, children proceedings, are very clear When an allegation of domestic abuse is made within children proceedings, the Court is obliged to identify at the earliest opportunity the factual and welfare issues involved, the nature of any allegation of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order.
In particular, under paragraph 25 of Practice Direction 12J, in circumstances where the allegations are undetermined, the court must consider whether it is in the interests of the children to allow interim contact with the accused parent. The point being that the risk of harm is paramount in assessing whether contact is appropriate. Judges will often simply prohibit any interim contact until a hearing can be heard and a fact-finding process has reached its conclusions.
Ideally the judge should determine whether a finding of fact is necessary “as soon as possible”, but the current situation in the family courts, where courts are closing, and the remainder are underfunded and understaffed. The result being that hearings are listed many months in the future, sometimes as much as 6 months. For this period the accused parent is prevented from having contact with their children. Another result can be that even where a falsely accused parent is vindicated, it is all too often the case that restarting contact can become its own issue, causing further acrimony and leading to more delays and problems. Obviously the delays can also mean that the victims of abuse, themselves, can be left waiting far too long for the Courts to make an order protecting those who are at risk of harm.
As with many areas of life, good intentions are great as long as they can actually be implemented. The government needs to ensure that these welcome reforms reach the people they are intended to help. The family courts need to be able to adequately provide services for those in family disputes. Without sufficient Court staff, time and resources, parents are let down and delays will continue. Sadly the eye of the present administration is elsewhere and the commitment to be able to successfully introduce change, perhaps, isn’t quite what it should be!
CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (6 March 2019)
CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (06 March 2019)
Kate Churchouse for Bison Solicitors acted for the appellant (CB) by her litigation friend the Official Solicitor in an appeal to a Tier 3 Judge of the High Court against a decision of a Tier 2 Judge in the Court of Protection within s.21A proceedings. The appeal considered the circumstances under which it is appropriate to give summary judgment in proceedings when a person's Article 5 rights are engaged.
The position of the Official Solicitor was that the Judge at first instance had erred by giving summary judgment at a directions hearing on 8 November 2018 without any prior notice to the parties and that her judgment was formed an opinion based on assumptions rather than evidence.
The argument put forward on behalf of CB was that while the judge had the authority to summarily dismiss the application, she incorrectly exercised the judicial discretion in a manner that was wrong and unjust. Mr Justice Hayden delivering his judgment allowed the appeal recording
“what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.”
Bison Solicitors instructed Oliver Lewis of Doughty Street Chambers who represented CB at both the permission hearing and the appeal hearing.
How do I Avoid the Brexit Effect?
By Rabia Aleem
How to Avoid the Brexit Effect
Following the mounting ambiguity in terms of the UK position following the referendum, the United Kingdom finally reached an arrangement with the European Union in December 2017, an agreement echoed within a draft treaty published in March 2018 intended to circumvent any negative Brexit repercussions for these individuals, for whom many have already re-established their lives here in the UK.
Significant points of that agreement being:
As per Home Office new announced policy European Union (EU) Nationals living lawfully and continuously in the UK for a least 5 years before 31 December 2020 can make a settled status application.
Settled status means that they will be able to stay in the UK indefinitely, with access to public funds and services. They can then go on to apply for British citizenship should they choose.
- EU citizens in the UK on that date but who can’t fulfil the 5 years’ residence requirement can apply to stay in the UK until they have 5 years’ residence, when they can then apply for settled status.
- EU citizens who arrive in the UK after the date we leave the EU but during the transition period will also be able to register for temporary residence status after 3 months, with a view to obtaining settled status after 5 years.
Treaty rights draft additionally contains provisions covering family members, extending past the 31st of December 2020, so far as the relationship had already existed at that date. Those hoping to make a European Economic Area (EEA) application will have to wait while negotiations continue between the UK government and those of Iceland, Norway, Switzerland and also Lichtenstein.
Types of Applications
Settled Status Application
Specialising in European applications from a long period of time. Our views about settled status applications? This new system is intended to be initiated during 2018, and we understand the Government has published information on its website with some basic information, however nobody is certain what form the settled status will take.
Points to be noted
An online application with options to submit a paper-based application will be available.
- Applicants will be required to verify their identity together with a recent photograph, as well as a declaration of any criminal convictions.
- Existing data in relation to supporting your application will be gathered via existing government records such as Her Majesty's Revenue & Customs (HMRC) and Department of Work and Pensions (DWP), given that the data will already be linked to the application, the information will be readily available.
- Options to verify applications will also be available where government data or evidence is incorrect or inaccessible.
Whereas indications from the Theresa May’s Government have suggested that settled status applications would apply to individuals exercising their treaty rights and working within the UK, Immigration minister, The Rt Hon Caroline Nokes MP has suggested that basic conditions to be met may be that of the EU citizen establishing residency in the UK for the given 5-year period.With many more matters related to settled status yet to be fully agreed upon, it does appear that system is geared towards a partiality of consenting settled status in the majority of cases, with the exception of a refusal potentially being refused based on the grounds of serious criminal convictions.
Temporary applications
EEA Nationals who by the end of transition, have resided within the UK for less than the 5-year period will still be permitted to remain within the UK, however will be required to apply for temporary residency status by the 30th of June 2021. This enables them to stay long enough to acquire their 5 years residence following this with an application for settled status.
The other eventually being should the European Union nationals arrive after the UK has left the European Union, but prior to the end of the transition period, they will be required to make an application for temporary residency after a period of 3 months, despite the fact they will be permitted to live and work. The individual will then be permitted to reside for a period of 5 years to make an application for settled status.
Deadlines still apply for a settled status application
Considering how the Windrush overwhelmed the lives of many venerable Commonwealth citizens who lived for many years in the UK without any legal status. In a comparable parallel, EU citizens within the UK have been living in ambiguity in terms of their future in the UK.
Situation that demonstrates resemblances of the Windrush scandal, an opportunity to make an application for settled status, or to obtain temporary residence status, allowing individuals to accrue 5 years residence, will only remain open until the 30th of June 2021. Individuals missing this deadline may find themselves in a similar situation to the Windrush generation.
Resolving the status of EU and EEA citizens is part of our expertise as Immigration experts’ .We specialises in Immigration, Human rights and law related to EEA Nationals.
We guarantee that you will be given the time and respect that your immigration case deserves and that our immigration experts will always provide you with advice that is:
- Honest
- Effective
- Clear
- Updated
- Friendly
Should you have any questions relating Brexit, obtaining residence permit and permanent residence permit as a qualified EEA National or as a family /extended family member please contact us.
Email: [email protected]
Telephone: +44 (0) 1252 268 068