Sunday, 26 June 2011

Failure To Dot The ‘I’s And Cross The ‘T’s…

Anna Raccoon has done sterling work identifying the abuses perpetrated by the Courts of Protection, and their most notorious screw-ups are appalling indeed.

But sometimes, the care authorities are placed in a near-impossible situation:
The Court of Protection has ruled that an 18-year-old man with autism and severe learning disabilities who was regularly placed in a padded seclusion room more than six times a day was unlawfully deprived of his liberty.
It's a sad story, because, in this case, it seems there's not a whole hell of a lot of alternatives:
Unlike the Neary case, in which all parties had already been publicly named before proceedings began and could therefore be named in the press, the local authority, primary care trust and school involved in C's care cannot be named to protect his identity.The details of the case were made public for the first time yesterday. C was described as a boy who has "aggressive and destructive traits" which put him at risk to both himself and his carers.
And not an 'assumed' risk, like Neary, either. This was a genuine, proven risk:
He suffers from a sensory impairment and often chooses to walk around naked because touch is a vital way for him to communicate. He often harms himself and has harmed his carers including one member of staff who suffered a detached retina.

Throughout 2010 C's behaviour deteriorated considerably and care workers came to rely on the blue room more and more often to control his actions.
What else could they do?

Still, presumably, if the judge has ruled it unlawful, it must surely be one of those mad cases where the law goes too far, right?

No, actually:
In a ruling in the Court of Protection at the High Court, Mr Justice Ryder described the case as "complex" and "tragic" but ruled that the use of the room was a deprivation of C's liberty and was unlawful because the special needs school had not sought a deprivation of liberty order through the court.
If only they'd asked, you see. The court would probably have agreed there was no other alternative.

But they didn't, and so now the lawyers start squabbling over the spoils like the vultures they are...
A further hearing to discuss damages and whether further rights were breached will take place at a later date.
Damages. To come out of the already stretched mental care budget. Imposed for not ensuring all the red tape was correctly tied, with a nice pretty bow, in their attempt to prevent C from damaging others, or himself...


Paul said...

Lots of people on the autistic sopectrum like to walk around naked because they're not truly conscious of the boundaries and when it is and isn't appropriate to do so. And, in some cases, it can be debatable whether doing is is in itself inappropriate, if you get what I am saying - but this tends to be more towards people with less disabling forms of autism.

Many people, when dealing with us and those like us do not see the person underneath, they only see the label. Though I do agree that people with more severe autism can be a danger to themselves and others, most usually their parents and carers.

sbc as was said...

It's one of those ones were what is morally right, reasonable and Good Practice is legally wrong. And the judge is absolutely right to convict for those undotted I and uncrossed T's. Those I's and T's happen to be the corner stone of all liberty ie no unlawful imprisonment. Men and women have died and continue to die for those very I's and T's.

I don't think the Carers could have acted any differently nor should they have perhaps and one hopes any compensation will be token, the merest nod to justice..perhaps the hourly minimum wage divided by 60 x however minutes he approximately spent in the padded cell ('seclusion room' is Guardian English I feel).

Anonymous said...

You hit the lawyer point well and the perversion involved in needing to get a written order. I don't know what would be right in such a case.

Anonymous said...

Dear god, surely it's not beyond the wot and jurisdiction of the judges to grant a retroactive order?

Ancient + Tattered Airman said...

Can our laws be so hidebound and Byzantine that we invariably punish the carers? There must be an alternative to keeping slimy lawyers rich. How about trying common sense (if it hasn't already been ruled out of order by the legal profession)

sbc as was said...

Ancient + Tattered Airman said...
"How about trying common sense"

Any reasonable person (I hate that phrase) would think that the court should have deep sixed this one but, for once, there is a very very important principle at stake:

"NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties... but by lawful judgment of his Peers, or by the Law of the land."

That no one can be imprisoned EVEN for their own supposed safety without a court saying so, even when common sense would dictate with parents who imprison their junky kids to go cold turkey.

The history of the treatment of the insane, crippled and otherwise considered 'not normal' is full of unlawful imprisonings, 'treatments' (ie castration, electroshock, zkylon B) and other such elements of Care.

blueknight said...

I'd be telling the parents to take him back...

Budvar said...

SBC, I think you're on dodgey ground here. First off care to define "Freeman" and "unlawful imprisonment?

Reason I ask is are we going to get a rash of cases for unlawful imprisonment because little Johnny finds himself in detention every other day at school or little Timmy is sent to his room without any supper?

SBC AS WAS said...

" First off care to define "Freeman" and "unlawful imprisonment?"

Well AFAICR the whole 'freeman' thing was changed to simply 'man' a longtime ago, soon after the first rough draft on the back of some medieval cigarette packet or whatever they used back then infact. It was a somewhat archaic term even then but WOAR can no doubt tell us exactly.

Little Johnny is tough out of luck. The term is 'unlawful' and parents and teachers by dint of loco parentis, I assume, have the lawfuls to detain a child in some circumstances although they are limited and more so each year.

As do Care Staff IF they have obtained lawfullness to do so and that's what this case appears to be about.

JuliaM said...

"...I do agree that people with more severe autism can be a danger to themselves and others, most usually their parents and carers."

Which makes this case all the more sad.

" hopes any compensation will be token, the merest nod to justice.."

A reasonable compromise indeed.

"..surely it's not beyond the wot and jurisdiction of the judges to grant a retroactive order?"

Interesting. Maybe that's not allowable?

Surreptitious Evil said...

Surely this is an ideal case for the "1p" damages award?

Did the correct thing (or as 'correct' as they had facilities to allow) but didn't get the appropriate authorisation. Guilty as charged (strict liability), conditional discharge, nominal damages.

Won't happen, though.

sbc as was said...

"Guilty as charged (strict liability), conditional discharge, nominal damages."