Lucy Series, blogger and researcher in law at the University of Exeter, argues today’s court ruling to free an autistic man from social care control may not be the last if social care professionals don’t expand their knowledge of the system that took his liberty.
The deprivation of liberty safeguards contain many rights for families of people lacking capacity, but they’re not much help if they, or the professionals supporting them, don’t know about them. That’s why it took Steven Neary’s father a year to get his son returned home, as reported today.
The safeguards were established following a similar detention of man at Bournwood hospital in 1997, but in that instance it only took five months for the young man to be returned home to his parents.
Steven Neary was detained under the new safeguards, but they are complex and difficult to understand. The Mental Health Alliance has reported that even the professionals who are meant to understand them have difficulty – so what chance do families have?
When people are formally deprived of their liberty, like Steven, they and their ‘personal representatives’ have a right to independent advocacy services to help support them. Professionals acting on behalf of supervisory bodies are meant to refer representatives or detainees to advocacy services where they think they are having trouble accessing their rights. But the Mental Health Alliance has found widespread failure to do this, and said ‘the vast majority of family representatives are receiving no support in grappling with an opaque and impenetrable system’.
Neary’s case also highlights widespread shortage of legal expertise in this area – Mark Neary, Steven’s father, called over 50 law firms before he found one who could take his case. The Independent reported that one solicitor had told Mark Neary he wasn’t entitled to legal aid. Personal representatives automatically qualify for legal aid under the safeguards, whatever their income, but families could be easily deterred by solicitors misinforming them.
Where there are serious disputes about where a person should live, it is good practice for local authorities to refer the case to the Court of Protection to decide. Steven’s case was finally brought to court in December by Mark’s solicitors, rather than the local authority. Highly unusually, the judge immediately ordered that Steven could return home, and a hearing in May will determine whether the council acted unlawfully when it deprived Steven of his liberty.
Situations like Mark and Steven’s could be resolved more quickly if accessible information and advice was more widely available to families. But until the system is more widely understood by those charged with administering it I fear we may see yet more heartbreaking cases like Neary’s.
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