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DoLs Mixtures

September 25, 2015

Yesterday, I was invited to speak at the Court of Protection annual conference. I planned to just deliver the Get Steven Home story, with an emphasis on the three court hearings. The theme of the conference was “Reform”. There were some wonderful speakers. Some brilliant minds with formidable hearts.

So why did I feel so flat?

The first reason was obvious to me. One of the speakers was from the Office of the Public Guardian and I found myself feeling irritated as she spoke about the role of the OPG. I know I’m very sensitive to these issues but it sounded to me like a fair bit of ” othering” going on. The overall message that I heard was that families were the bad guys when it comes to financial abuse of incapacitated people. Professionals act with integrity – families are the villains. On the spur of the moment, I decided to change my speech and finished by talking about our ongoing relationship with the Court. I mentioned that I’ve recently done some calculations. I am meant to manage Steven’s finances and every penny I spend has to be in his best interests. That’s fine, even though I find it stressful not knowing how buying Steven a new CD will be interpreted. But here’s the rub. Even if I never spend another penny of Steven’s money, by a combination of the OPG fees and care charges, in seven years all of his money will be gone. Add into that the fact that LAs are charging people £85 a day to attend a day centre and private companies are charging £3500 per week for being in an ATU, I think financial abuse is just as likely from the State as from the family.

That only explains half of my flatness. The other half is trickier. It’s that awful sinking feeling I get when I experience how huge the industry is that’s built up around DoLs. I listen to some fabulous discussions about DoLs but I can’t place Steven’s life anywhere in the narrative. DoLs have become about lots of things but have become less about P. So, I get confused because I hear some wonderfully committed people debating the DoLs scheme but it feels alien to the life we inhabit. Legal professionals, social care peeps, academics, even philosophers wrestle with the Safeguards and for their good intentions, the industry expands.

Here is the thought that kept me awake most of last night. Would it be such a bad idea if the whole DoLs scheme was scrapped and we forget the idea of introducing a replacement scheme? Despite concordats, task forces, vanguards and Bubb breakfasts, the number of people coming out of ATUs has hardly moved an inch. Have DoLs helped the 3000+ people languishing in ATUs? Whether we apply an acid test or the Clapham omnibus test, people still get admitted to ATUs as frequently as the pre Cheshire West days.

One thing I’m prepared to bet is that, regardless of whether the 3000+ people are under a DoL, it is more than likely their Article 8 (and Article 5) Human Rights are being breached. But the HRA seldom comes into the equation. I don’t understand that. We have an existing law that could sufficiently serve detained people but we’d rather give endless energy deliberating what exactly is a deprivation of liberty.

If I could wave a magic wand, #LBBill would become law tomorrow. That would promote the person’s autonomy and make unlawful incarcerations so much more difficult. And for the people who slip through the #LBBill net, or for those people already detained, throw away your DoL schedules and view their detention through an Article 8 lens. I’m pretty sure that if we shifted the framing, people would receive justice quicker and more fairly.

Until of course, the Article 8 industry builds up.

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From → Social Care

7 Comments
  1. Shirley Buckley permalink

    Mark I wish I had been there I would have been standing up cheering you. Of course there is financial abuse by everyone involved in dols against P. I have had Martin’s EPA overruled by the LA, he has had no continuing care assessment for seven years, he is having to pay £80 a week out of his benefits towards the home’s fees of £2,400, and the manager of the home has accused ME of financial abuse and said if I try to give Martin’s bank details to the DWP she will call the police. And she told Martin this. The LA had proof that the home was not meeting their financial obligations to Martin and did nothing about it. The Court of Protection has ordered that Martin stay in the home despite his continual wish to live in his own home. And so on. He went voluntarily into the home in July 2008, and has been deprived of his liberty since then. His litigation friend the Official Solicitor never once mentioned dols in court. We have been in Court since 2006. Watch this space

    • Shirley, you must also remember, that as of right. don’t think its means tested in the Act, Martin is entitled, to claim under the Chronically Sick and Disabled Act 1970, which, appears to be how the LAs, pay up to £4,000 per week, to their commissioned residential, enforced state care.

      This money under the ACT, should be made available, to the disabled personally and their families, at present, it is being hijacked illegally by LAs, to pay their commissions, and, remove all rights of the disabled and their families.

      It is both corruption, and theft, of the highest order.

  2. Sally permalink

    Mark,Brilliant that you said that. Thank you .
    What was the reaction to Steven’s money gone in seven years??
    I am so angry when I read palpitating letters from either the Givenment or parents who should know better, all starry eyed about the freedom and independence the new system brings. A few harsh factslile yours about charges and and how much of the charge actually goes towards the care of the person would wipe the smile off their faces.
    In our LA I find its a small number parents of the higher functioning and independent who are the major cheerleaders for the wonders of personal budgets. Fair enough, if you have someone not in need of a high level of care it must be nice to be able to water ski or have some extra help at Uni. I just wish they paused to think about the reality for the more disabled.

  3. Sally permalink

    Sorry, spellchecking didn’t work!

  4. johnlish permalink

    When I look at the legislation that brought in DoLS, there is nothing intrinsically wrong with the framing and expectations for them. Except one expectation. They assume that the rest of the systems in place work for those under its remit.

    That’s the thing that makes DoLS the canary in the coalmine. Had that assumption been true then DoLS would never be subject to the Law Commission’s review as DoLS would have been a limited safeguard to ensure that such action was necessary.

    Instead the failures are cultural as other laws/guidance/expectations fail to be adequate for those needing social care. Hence the expansion of judicial oversight into DoLS so that every nook and cranny was overseen. Its a failure of social work to ensure people live their lives fully.

    If people did live full lives, would we give a toss about DoLS? No. Because their reach would be limited and seen as a check to ensure such action was necessary.

    Fair play to the Law Commission for recognising that in their proposals but…

    What they are proposing is a lever to ensure other parts of the system work how the law/Parliament expects them to. Without a cultural shift, I can see judicial oversight having to re-expand itself to enforce the new regulatory system which would make the reform somewhat self-defeating.

    Its also worth pointing out that the #LBBill is itself just another regulatory device designed to shift cultural practices and behaviours. It has the same basic intentions as the Law Commission proposals. Doesn’t that tell you something?

    When you read squinnying social workers on twitter moaning about DoLS, ask yourself Mark why is the focus on safeguard mechanisms and not living full lives?

    DoLS were never a problem, they merely exposed the problems of how social care works and its various limitations. That’s why they are of academic interest because they hold a mirror to a dysfunctional system.

    • The MCA, was deliberately created, to be dysfunctional.

      It is a subversion of law, and, in breach of the rule of law, as drafted.

      There has not been, a Supreme Court West Cheshire Case, on the making of specific decisions, but the same law applies, as a person’s capacity, in respect to every decision, must be assessed, before it is made,when it needs to be made, by another, in their best interests.

      No, MCA, is not about protecting autonomy, but about removing it.

      DOLs will be now just be tick boxed

      MCA is also, in breach of art 12 of the Convention on the Rights of Persons with Disabilities, which provides, a person’s right to make decisions, cannot be removed, because of their disability.

      The prior law, of intervention, by the High Court, under the Doctrine of Necessity, together with Enduring, now Lasting Powers of Attorneys, was more than sufficient, to protect the vulnerable.
      As it still is in N. Ireland and elsewhere.

      We must ask why, we are, as far as I am aware, the only country in EU, that has such draconian intervention, ie removal of Magna Carta rights, in an inquisitorial secret court, with little investigation of the evidence, and paid by state experts, and, little check on whether, de facto, the courts/SS/OS, are acting in the disabled’s best interests, and no checks, on what happens to them, in their enforced state care.

      It would appear the real reason for MCA, was to profit from the mentally disabled, and old, as is happening. They are now a huge growth industry.

      And, the Court of Protection, has, by the MCA gained control of , and, made billions, since its inception.

      And, will, if Grayling is followed, soon be privatised.

  5. Financial abuse, is the name of the game.

    ‘Supported’ living, where, most autistic, learning disabled, are removed to for life, as this, appears the main function of Adult Services, Social workers, now service managers, who need no SS qualification.

    Costs, a minimum of 3,500 per week, for basic care, in breach of Autism Act 09 guidelines, but judicial reviews, by family effectively impossible to bring, per se, and because of cost, and, HRA s8 Right to a family life.

    At home, parents are not paid for their care, and the DLA is deducted by £77, in our case, for any amount of care, and, payments monitored.

    It is worse under Carers Act, as if, as most illegally are, the autistic/LD, are deemed ‘incapable’ under the MCA, only carers/support chosen by the LA, and paid by them, can be used.

    It is very much made ‘us’ and ‘them’.

    The parents are the enemy, to be watched, and almost automatically, without evidence, deemed incapable and abusive.

    Whilst the state, no matter, what the evidence, cannot be.

    The autism/ care industry has been built up on this, and put in place.

    The residential homes are built, the venture capital/investors moved into this sector, which depends on removal from home for life, and parents, at most get supervised access, provided they support the care, no matter how abusive.

    And the courts rubber stamp.

    Power of attorney for welfare in favour of parents, are set aside, on the basis of illegal, retrospective incapacity of the autistic/LD, and, parents have no say, in the care of their loved ones, merely consultation, if lucky.

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