The Queen should die! Truth and Justice in the Family Courts

In Book 19 of Thomas Malory’s Le Morte d’Arthur, Queen Guinevere is accused by Sir Meliagrance of high treason through infidelity with Sir Launcelot.

I thought that was a good opening line for a blog about truth and justice in the family courts! What actually inspired this were the reflections here of @suesspiciousmin on whether family justice is adversarial or inquisitorial. In particular, the gauntlet was thrown down (an appropriate mediaeval metaphor), “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”, which led me to this classic account of adversarial justice.

To get to the bottom of this matter, the Queen has a champion who will fight to the death for her. Sir Meliagrance is somewhat surprised that this is Sir Launcelot himself (the Queen’s lover, so professional misconduct and a conflict of interests, but there we go), and at one point the King intervenes to give the go ahead to measures to make the adversarial joust fairer: Sir Launcelot is to be partially unarmed, and fight with one hand tied behind his back. He still wins, Sir Meliagrance is beheaded, and the Queen is vidicated until another day.

This is classic adversarial justice. The two opposing arguments are championed by an advocate, they fight to the death, the King looks on dispassionately, makes sure the fight is fair, and in due course declares the winner to have been vindicated.

As that reputable legal source Wikipedia would have it,

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense.

Never mind that the Queen had committed high treason by a lifetime’s affair with Launcelot. The aim of this joust is to be fair, not to establish the truth. Indeed, if truth be told, I can now reveal King Arthur spent his reign going out of his way not to discover the truth about his wife and his best friend. He feared, correctly, that the truth would undermine his vision of a fairer society embodied in the round table; and his hold on his kingdom. It is why this tragedy is called the Death, and not the Life, of Arthur.

But we have now established two important points about adversarial justice, that held true in mythical mediaeval England, and still hold true today.

Justice is not necessarily seeking truth

The first is that justice is not necessarily seeking truth. When I first realised this, it startled me, but it is a fact I have grown more accustomed to over the years. There are many reasons, as Arthur discovered, for not seeking truth. In criminal law, if you reflect on the rule against self-incrimination (the bit that leads the Agatha Christie suspect to say, “aah, but you can’t prove any of this…”) you will realise this is about a notion of justice, rather than truth.

What about the threshold, “beyond reasonable doubt”? On reflection you will realise that means that some people who are more probably than not guilty must be acquitted. Because we have decided that it is a worse injustice for an innocent person to be convicted than for a guilty person to be acquitted. So our notion of justice creates a system in which getting to the truth is not central.

This very day, the BBC has reported that, “Lawyers claim new policy causes miscarriages of justice“. a story based on people being required to plead guilty or not guilty before they have seen the case against them. The idea that you should know how good or bad a case your opponent has built up against you, before deciding how to answer the question whether you did it or not, is based on our notion of justice, not of truth.

I am not saying that our notions of justice are wrong. There are sound reasons for them. Listen to people justfying torture as a means of extracting information, and you may prefer justice to truth. Consider how vulnerable people can readily make false confessions of what they didn’t do, and you may be glad about rules against self-incrimination. Consider those occasions when juries have acquitted not so much because they believe in innocence but because they do not believe that the punishment fits the crime. If you take the same view, you may think this was justice (let’s just assume this happened in history – when we had the death penalty, for example – rather than that it happens today…)

What I am saying is that justice is not necessarily seeking truth, though an inquiry into truth is more a characteristic of inquisitorial than adversarial justice.

An inquiry into truth is not necessarily co-operative

The second lesson is that the true distinction between adversarial and inquisitorial justice is not that the former is confrontational and the latter is co-operative; but that inquisitorial justice is more active in its inquiry into truth. In many inquisitorial tribunals, the tribunal can itself take the lead in the process of extracting the evidence and inquiring into truth. And inquisitorial justice can be every bit as confrontational (or, as we might say, adversarial).

We don’t need to imagine what might have happened if the truth about the Queen’s infidelity came out, because it happened shortly afterwards. The Queen was sentenced to death; Launcelot stepped in again; there was open warfare between Launcelot’s and the King’s factions; the King’s illegitimate son Mordred meanwhile stepped in to seize the throne – and marry Guinevere; which results ultimately in the King and Mordred killing each other on the battlefield as the dream dies…

An inquiry into truth is not necessarily co-operative. Facing up to the truth can, as Arthur discovered, be every bit as confrontational and adversarial, as we see our dreams lie in tatters.

It is a trusim that the family courts are supposed to have an inquisitorial system  – albeit one questioned in the blog which prompted these reflections. It is certainly true that there are real questions about whether the inherent confrontation helps or impedes the inquiry. It was encouraging to be able to report just yesterday on a case in which a High Court judge adopted something more akin to Alternative Dispute Resolution in a public law child care case.

We only need to see the heat that is generated by the conflict inherent in the current system to know that something needs to change (see, for example, this blog from Pink Tape @familoo). Before we decide exactly what needs to change, we need to answer some fundamental questions:

What are the principles of justice that matter more than truth in the family courts? And how can we maximise co-operation rather than confrontation in bringing about that justice?

These are questions that suesspiciousminds attempts to answer.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

Filling the vacuum – what if Working Together were only 10 pages long?

Some of you may know Celtic Knot is hosted in the building of Birmingham Friends of the Earth. The government has plans to radically reform planning laws, dropping many of the rules that could be used to oppose new development. Recently I was quizzed by colleagues at Friends of the Earth about what would happen to the status of all the existing guidance documents, textbooks and caselaw if this happened, so I was exploring what would survive, what would fall, and why.

And it occurs to me the same exercise could be done to Working Together. If it were reduced to 10 pages, as some have suggested, what would fill the vacuum?

To answer this, we first need to understand what its present status is, and how it has any legal authority in the first place. So, first…

A little history

When social services departments were created in 1970, the Act creating them made specific provision for the Secretary of State to issue guidance to social workers. A single court case, R v Islington LBC ex p Rixon [1998] 1 CCLR 119 has always contaned the definitive statement about the status of such guidance:

“While guidance and direction are semantically and legally different things and while ‘guidance does not compel any particular decision’ … especially when prefaced by the word ‘general’, in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

Working Together was first published in 1999. A second edition came in 2006, and split it into two parts, statutory and non-statutory guidance. The same two-part structure is to be found in the current 2010 version.

So, the first half of Working Together has the peculiar status of statutory guidance, and the second does not.

Now, six propositions for what would fill the vacuum
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The Court of Appeal ruled yesterday on the scope for adult safeguarding

The Court of Appeal ruled yesterday (DL v A Local Authority & Ors [2012] EWCA Civ 253 (28 March 2012)) on the possible scope of adult safeguarding. An elderly couple had chosen not to take steps to protect themselves from their potentially violent and aggressive son. Could the local authority safeguard them?

Here is the ruling in a nutshell: local authorities can intervene to protect people who have mental capacity to decide for themselves and choose not to be safeguarded, but only if they lack capacity to decide for themselves in some other way.

Commentary

In one sense the Court has said nothing new; but in another it has said something controversial.

Nothing new, because it upheld judgements made below (i.e. by the High Court) and therefore doesn’t change anything, even though the judgement is a welcome expansion and elucidation of the law in this area. Something controversial because as the President of the Family Division said at an earlier stage in this litigation,

I am of the view that the present case involves an extension of the inherent jurisdiction… [paragraph 20]

What’s it all about?

Can we intervene to protect an adult who chooses not to protect themselves from their grown up child, because they want to protect their relationship with their child?
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Adult safeguarding – introducing the concept of insignificant harm

The proposal is that the threshold for adult safeguarding should be “significant harm”, rather than the lower “harm” threshold recommended by the Law Commission. Mithran Samuel at Community Care (@mithransamuel, @ComCareAdults) debates the wisdom of this (‘Will safeguarding threshold leave adults at risk?‘) with reference to arguments aired at their Adult Protection Conference, and I note reference to the Department of Health favouring the same threshold as for children.

Good for them! I hope it was more than a quest for neatness and simplicity. I venture to suggest a parallel with the children’s significant harm threshold is legally and morally right.

I fear being torn off my high horse whenever I write favouring less intervention. Many can understand that our human rights, forged in the aftermath of a long and bloody fight against totalitarianism, are largely rights to be left alone by the State. But I write from within a profession that epitomises State intervention in private life; and many are comfortable with that and uncomfortable with anything that might limit their right to intervene.
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The case for health and care privatisation

Yesterday, the Health and Social Care Bill finished its passage through Parliament. Today is the budget speech.

Saturday’s Guardian had a piece entitled ‘What will the 2012 Budget mean for you?‘. It was not about the NHS, nor privatisation, just about how the budget affects the lives of ordinary people. But one of the ordinary people – acknowledgedly ‘the high earner’ – caught my attention, because he works in the field of social care. His name is Tony Stein.

According to the article,

Tony Stein is founder and director of Canterbury Care, which operates 11 care homes across the UK. Last year his earnings “just about touched” the £150,000 level…

Although Tony signed a letter in the Telegraph last month arguing that the 50p tax rate “puts wealth creators like us in an awkward position”, he is an ordinary guy:

It’s not as if I’m earning millions. Actually, what has me shouting at the telly is the executives of big banks who earn millions but aren’t putting their own money at risk.

Is Tony making out a persuasive case for private enterprise running social care, the case for privatisation? Let me make clear, I don’t know him personally, nor do I have any dealings with his company. Nor, frankly, have I done much by way of research, though I have done a little digging.

A little digging revealed that Canterbury Care is headquartered in Worcestershire, where a local Green Party member in 2010 criticized the Council’s Chief Executive for not taking a pay cut:

Mrs Haines is contracted on a salary band ranging from £167,977 to £183,725 a year.

Worcestershire County Council’s accounts suggest it is rather a larger affair than Canterbury Care with its 11 care homes; its Chief Executive gets paid more, but hardly in proportion to the size of the enterprise. Among the information I extracted from Worcestershire’s balance sheet are that it has long term assets of £1.695 billion and long term liabilities of £1.056 billion. I went looking for that figure to compare it with Tony Stein who says Canterbury Care has “£14 million in borrowing”.

I venture to suggest it is pretty plain that Tony Stein has a salary chasing that of the Council’s Chief Executive, for a far smaller venture. Measured by debt, the Council’s financial headache seems to be about seventy five times the size.

At this point, I start to speculate that it might be 75 times cheaper to have debt presided over by a local authority than a private enterprise, and that Tony Stein really hasn’t made out a persuasive case for privatisation of social care.

But, to be fair, it isn’t just the size of the financial headache that Tony relies on to convince us. It’s the fact that

…We employ 455 people, but we have £14m in borrowing, and a big mortgage on my home. At the end of the day I have my neck on the line. Yes, I earn £150,000 or so, but it’s me who has sleepless nights over the borrowings and operations of the business, and it’s me who works all weekend.

So he can shout at the bankers on the telly like the rest of us, because of the fact that his pay is justified because his own money is at risk in his enterprise. And he works all weekend – though I am presuming his residential care homes are staffed all weekend also.

I’m sorry, Mr Stein, but I’m afraid you have actually made out a case to be relieved of that risk and that income. I’m just not getting what is the benefit to the public of the liabilities and risks being borne by wealth creators like you instead of the taxpayer. If residential care were run by local authorities, no individual would have to have sleepless nights because of their personal investment and risk. No individual would therefore need to be paid £150,000 to preside over just 11 residential care homes. The tax payer wouldn’t need to worry about where the money came from and whether there might be a Southern Cross-like disaster. The case for privatisation is not made out.

And I haven’t even begun to explore the market arguments about quality, efficiency, competition and the like. This commentary is just about the apparently extraordinary cost of privatising capital and investment risk.

Did I mention, yesterday the Health and Social Care Bill cleared its passage through Parliament?

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

Please, I want to subsidise miscreants! – reflections on the regulation consultation

Community Care today reports in digestible form on a Law Commission consultation opening today on the regulation of Health and Social Care. As someone who represents before both health and social care regulators, there was much to make my hackles rise in here, But I want to pick up on just one thing, as reported by Community Care:

One… proposal is that ministers will be able to give regulators the power to… make them pay the costs of their conduct hearings. While the commission says this could prove controversial, the current system of covering the costs through registration fees raises the question of “why good professionals should be expected to subsidise the miscreant” [page 196 of the report].

Well, it should be controversial, although when I reflect on some of the censorious comments that get made about the latest misconduct cases to be reported, I have my doubts – maybe this sentiment about subsidising the miscreants is widely held?

It is, however, misguided for at least two important reasons.

We will all pay for the miscreants, come what may

Let’s not beat about the bush, regulatory proceedings are expensive:

For example, information released by the GSCC under the 2000 Freedom of Information Act reveals that, in one case, they spent £34,551.62 plus VAT on legal representation—a cost way beyond the finances of the vast majority of social workers… [Ken McLaughlin British Journal of Social Work [2010] volume 40(1) pp311-327]

Have you got an annual salary or more to spare just in case? Thought not! Take careful note – the regulator’s costs tend to be vastly greater than the registrant’s costs, and this proposal is for you to take on the unquantifiable bottomless pit risk of the regulator’s costs, not just your own. A risk you can’t avoid once caught up. Under the current GSCC regime, once the ball has started rolling, you can’t simply agree to drop off the register, nor even agree to negotiate a sanction – the process – and risk – rolls on remorselessly regardless.

As a result, if professional registration carries with it a risk of liability of this magnitude, professionals of any sense will protect themselves against potential liability by membership schemes or insurance – as many health professionals already do. And, of course, the underpinning principle of insurance, even if weighted, is precisely that risk is spread amongst the populaton that carries the risk so as to make it affordable.

To put it another way, “good professionals will subsidise miscreants”, out of pure self-interest, but now with an element of profit for the insurance companies thown in, which is not there when we subsidise “miscreants” only through our registration fees.

Personally, I’d opt to share the risk, but without the profit motive – wouldn’t you?

There but for the grace of God

The other point is that my long experience is that most people in front of misconduct committees don’t deserve the epithet “miscreants”.

So often, my clients are bemused about how they came to be here. That character flaw. That momentary lapse of judgement. That backlog caused by an excessive caseload. That case where the media was crying for a scapegoat. That step I didn’t take which, with hindsight, I can see would have helped. That personality clash with my line manager. That decision I took when no supervisor was available. That was professional misconduct?

Sometimes, of course, it isn’t: statistics for mid 2010 (when there was a rather larger number of cases being decided than now) showed that less than half of registrants coming to full hearings were unfit to practice (suspended or removed) and more than 10% had not committed misconduct. Half were admonished. Would you want this kind of costs risk for a ticking off – one that you may even accept you deserve?

Which is why I say, there but for the grace of God. And why I happily offer to share the risk with you, and ask you to share it with me.

You can respond to the consultation here: http://lawcommission.justice.gov.uk/consultations/1755.htm

New excuses not to assess adult community care needs?

How likely does it need to be that a person who wants to be assessed for adult community care services from a local authority will actually be in need of them? That is the question posed in a new case decided today, NM, R (on the application of) v London Borough of Islington & Ors [2012] EWHC 414 (Admin) (29 February 2012).

I wasn’t aware this was a new question. I thought I knew the answer. It was this: it doesn’t need to be very likely at all. It’s a low threshold test. Most excuses for not assessing are bad excuses for not assessing.

And I thought the answer flowed pretty inevitably from the wording of the Act:

…where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority-(a) shall carry out an assessment of his needs for those services…

There are two mays in there, and one shall. The two mays mean that the duty to assess remains even though you are uncertain firstly about whether you will need to provide services, and second about whether the service user will need them. The first uncertainty means it is no excuse to say, “it might be a different authority”; or “they might be financially ineligible”; the second uncertainty means it is no excuse to say “they might fall below the threshold of eligible need”.

Which makes perfect sense to me. You carry out the assessment to address the uncertainty. Once you have completed the assessment it stops being uncertain.

Today’s judgement seems to me to mangle the otherwise plain meaning of those words. The circumstances are as follows: NM is detained, awaiting parole, wanting to move back to Islington on release, and to assist in its parole decision, the Parole Board wants Islington to assess. Islington says there is no duty to do so, and the court agrees.

Sorry, this analysis is going to be tortuously legalistic for a bit, and it all centres on this paragraph of reasoning:

The critical question is whether the Claimant is the person who “may be in need of any such services” within the meaning of that phrase in section 47(1). In my view, on proper interpretation of that phrase, to bring himself within the scope of this section it is necessary for a claimant to show that there is a sufficiently concrete and likely prospect of him being in a position where community care services may need to be provided to him if he has relevant needs which would require to be met by the provision of such services. The words “may be in need” are in the present tense and do not import a flavour of coverage of possible needs which may arise in the future… In context, the word “may” is apt because it indicates that there has to appear to the relevant local authority a significant possibility that the person in question might have a present need for community care services to be provided to him by that local authority… [paragraph 77]

Looks wrong to me! The paragraph conflates those two different uncertainties, with worrying practical consequences. The first uncertainty is whether Islington is going to need to make provision; the second is whether NM is going to need services. The court thinks it is significant that “may be in need” is present tense. No, it’s not. Those words are to deal with uncertainty about need, not timing. NM has present needs. He’s not presently in Islington, but his needs are not speculative future needs, only his location is speculative and future. And location is dealt with by the first uncertainty, namely whether Islington is going to have to meet the need. Is Islington one of the contenders that may provide any services (first uncertainty) yes it is: it should assess his need. QED.

The conflation of the two uncertainties is apparent, embedded in the wording, if we tease it out:

The critical question is… “may be in need of any such services” … on proper interpretation of that phrase…  it is necessary for a claimant to show… community care services may need to be provided… [my emphasis – from paragraph 77]

See? The judgement is saying may be in need (second uncertainty) means may need to be provided (first uncertainty).

The worrying practical consequences are that local authorities may refuse to assess need by second guessing whether they would have to provide anything. In the present case, by saying that his move to Islington is uncertain. By extension, if two local authorities dispute ordinary residence, both might use this reasoning not to assess (instead of assessing on the basis of possible future liability pending the dispute outcome). Or local authorities may apply the “likely prospect” of needing to provide as a new threshold test so as not to assess needs that are likely to be unmet or self-funded.

I can only hope that pending further judicial comment, local authorities will adopt a pragmatism borne of the Act and previous caselaw, and use assessments as a means to determine provision instead of using likelihood of provision as a means to determine whether to assess.

Allan Norman is a registered social worker and a solicitor at Celtic Knot.

The case of the nurses and the elderly man: does JE stand for judicial empathy?

The case in the Court of Appeal of two nurses dismissed for their role in the unlawful restraint of a patient with dementia seems an interesting case study in judicial empathy. Its citation is Crawford & Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 (17 February 2012), but I’m going to call it the case of JE. Although he’s not a party to the case, he is the person it’s all about, after all.

At the least, there was palpable sympathy from the court for the nurses. And very useful judicial commentary for any professional who faces routine suspension and isolation during a slow disciplinary investigation.

Try out empathy for the nurses yourself. Here’s the crude facts:

  • You are one of 2 nurses on night duty on an admission and assessment ward primarily for people with depression, anxiety or dementia;
  • On this particular night, one of the patients, JE “was 87 and suffered from dementia. On the day in question he had been agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention. It was noted that the safe handling technique used by the staff on the previous shift had caused skin tears on his arms to be opened. Medication had to be administered forcibly because he was refusing both food and medicine”;
  • You have a duty of care to all the patents, and are aware that on the previous day, JE required 2:1 attention, with the effect that “the other patients had only their basic needs attended to”;
  • You constrain JE by tying his chair to the table with a sheet. Exactly how, and whether it involved tying JE himself, is unclear;
  • In consequence you are suspended, and forbidden all contact with colleagues;
  • The incident is reported to the Police;
  • Eventually, following a disciplinary, you are dismissed, and inevitably your regulator is aware of this.

So, do you feel hard done by? Really, your employer just hadn’t provided enough staff to manage the situation in accordance with best practice, and some sort of hack was going to be necessary. What you did – or possibly, what you failed to record or prevent – wasn’t noticeably worse than the injuries the day staff caused to JE’s arms, and the forcible administration of medication, both of which are also technically assaults. Inevitably, best practice care for him would have been to the detriment of all the other patients. And after an incident-free career, it feels over the top to face immediate suspension with no contact with colleagues. Is it really right that you whole career should be at risk?

The Court of Appeal got all of this, and went out of their way – really, bending over backwards – to criticize the nurses treatment.

First, the footnote

The footnote is frankly the best bit of the judgement. A shame it is what lawyers would term an obiter dictum – unnecessary to the decision, therefore not binding on anyone else. The judges noted what in my experience of such cases is true, that this immediate suspension with no contact is common practice, but, they said, it is not good employment practice:

“It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so… I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk.” [paragraph 71]

The footnote is even more scathing about the referral to the Police:

“I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct.” [paragraph 73]

This approach to criminality is fascinating. There was an assault. And in my assessment it is hardly beyond the bounds of probability there was a crime. But the judges do not say there was no crime. They apply a different test, whether the conduct justifies the epithet ‘criminal’ being applied to it. One gets the impression the court is mindful that the criminal law is there to sanction the most egrerious breaches of society’s minimum standards, and feels that regulated professionals who fall short of best practice standards are properly dealt with in a different arena than the criminal courts. Moreover, employers of professionals should be making the judgement about the appropriate arena for themselves.

Second, the speculation

Yes, I’ve gone for alliteration.

The court imagines for itself how the nurses must feel:

“They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging… It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it.”

The court also speculates on the long term consequences:

“Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them.”

Third, the theorising

The third way the court bent over backwards was in its reasoning to its conclusion. The structure of employment law in the area of unfair dismissal is unhelpful to us professionals, in that the appeal process does not consider whether the decision could or should have been different, only whether it was within the range of reasonable responses based on honestly held reasonable belief – see paragraph 25.

Given how low the threshold for what the employer needed to show, it required quite tortuous reasoning for the Court of Appeal to swap the outcome again and declare the dismissal unfair. But the court managed it.

But what about JE?

However useful the judicial comment on the treatment of professionals by employers – and I truly welcome its comments, as the standard ‘act first, reflect later’ practice of risk-averse employers can treat professionals quite abominably – the elephant in the room so far as judicial empathy is concerned is the patient concerned, JE.

I see no evidence that the court tried to put itself into JE’s situation. It observed that the medics were

“sanguine about it. It appeared to cause them little concern; [the Ward Manager] noted that they were not “shocked, angry or even mildly emotional about the allegation”. She felt that they were not treating the incident seriously enough.” [paragraph 7]

The court, frankly, seems equally sanguine.

“…technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed…” [paragraph 73]

But I find it hard to be so sanguine. JE was male, aggressive, 87 and suffering with dementia, but a human being nonetheless. None of these characteristics could, of themselves, have provided the justification for his treatment. And I really do wonder whether the reaction would have been the same had he been a passive young woman with a physical disability, rather than an aggressive old man with dementia?

JE maybe does not stand for judicial empathy after all?

Allan Norman is a registered social worker and a solicitor at Celtic Knot.

Religion, secularism and the state: in defence of the middle ground!

The proximity of two recent judgements apparently challenging the right of Christians to practise their faith has led to much media interest including the headline ‘Christianity on the Rack’. One of the two concerned public prayers at council meetings.

Responses have included ‘a plague on both your houses’ from those who dislike the fervour of the National Secular Society as much as that of the Christian Institute; an attack on ‘militant secularism’; and a narrow analysis that the scope of the judgements was not the broad brush attack on faith that it seems.

Now, I approach these rulings as a lawyer who believes in human rights; but from that perspective the growth of a secular society is neither inevitable, nor even a preferred direction of travel.

My unusual, but hardly unique starting point, is that Christianity itself lost its way, somewhat, when it was appropriated as a state religion under Constantine; and that requiring it to sink or swim without state support in competition with every other faith or belief, is fine. I’ve no truck, then, with the ‘Christian country, Christian heritage’ kinds of arguments. If someone is intolerant enough to insist on asking a judge the question, I have no quibble with the answer the judge gave.

However, there are two dangers that appear to have been widely missed. Both emerge from the debate about the boundary between public and private life.

The first danger is the growing perception that the manifestation of faith should be a matter for private and not public life. That is not our human right. After all, the scope of Article 9 could hardly be clearer:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom…  either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

Our liberal right is to manifest faith, “alone or in community… in public or in private“. It may well be that faith should not be state-sponsored. But it should be allowed to be a part of public life, not a purely personal, still less a secret activity.

The second danger, again accepting that faith should not be state-sponsored, is that if we are to secularise state-sponsored public life, we need a clear understanding of the boundary between public and private life; and we need enough of life to be on the private side of that boundary for faith to be able to thrive.

Three growth areas in state activity concern me in this regard: regulation, privatisation, and criminalisation. As a social worker, I draw my examples from social work, surely the epitome of the interface between state-sponsored public life and private life.

Regulation

By regulation, I refer to the State’s involvement in setting and enforcing standards. Checking that restaurants are clean seems innocuous enough. Requiring us to register if we look after each other’s children is more problematic. Oh, I understand the pubic interest in the welfare of children readily enough, the problematic is the boundary between public and private spheres of activity. Something that was once a purely private activity becomes the State’s concern.

Consider this for a moment. The threshold for compulsory intervention in family life is significant harm; a threshold that serves as a reminder that in the absence of significant harm the State may seek to persuade, but cannot coerce it’s views on how to bring up a child. But if I want to bring up someone else’s child, I need the State’s approval. Despite the fact that we know children would be better off in families than in corporate care, we check those new families not against the ‘significant harm’ threshold but against the State’s best practice standards. Further developments mean we are under pressure to treat kinship and non-kinship arrangements comparably. Again, I understand the whys and wherefores, just observe that kinship care, surely once the epitome of the private sphere, has become the State’s concern.

Paragraph 5.8 of the GSCC’s Code of Practice – a standard enforceable against social workers under the Care Standards Act, and one frequently cited in misconduct cases, provides a further example. An Act of Parliament makes provision for a Code which in turn allows an organ of the State to monitor and censure the private lives of social workers.

As Ken McLaughlin explains (British Journal of Social Work [2010] volume 40(1) pp311-327),

“There is certainly a similarity to religion in the way that the GSCC has taken to censuring our sex, drink and drug habits… In some respects, it could be argued that the GSCC is replacing the priest or imam as the contemporary arbiter of morally ‘correct’ behaviour.”

Privatisation

Now, why should privatisation represent an expansion of the State’s area of influence, rather than a contraction? The answer is that what it represents is a blurring of the State’s sphere of influence. Certain activities, health or social care, for example, were once clearly in the public domain, or clearly in the private domain. But when the private domain contracts with the public domain, and the same commercial providers supply both, the boundaries are blurred.

Nowhere is this better illustrated than by the fallout from the House of Lords’ decision in YL v Birmingham City Council & Ors [2007] UKHL 27 (20 June 2007). An 83 year old woman with dementia was unable to assert her human rights against her care provider because she was placed in a privatised care setting, the provider being held not to be performing a ‘public function’. In the fallout from that decision, there has been a call to expand the definition of ‘public function’ to cover privatised services.

There should surely be nothing objectionable in that, if I believe, as I do, in human rights? Well, it does seem to me that YL’s human rights ought to have arisen because of her humanity, not because of some technical ruling about the scope of the State. And if we are to expand the scope of what is a ‘public function’ it does seem we are going to need to tread with care lest we also believe that means ‘secular’.

Criminalisation

Two characteristics of the criminal law may be said to be that it represents society’s minimum standards of behaviour, and that it is the State that polices them. So a surge in new criminal offences (approximately one new offence a day under the previous administration) also corresponds with a growth in the scope of activity that the State polices.


Now, to be fair, there has been public support, media support, democratic support, for the growth of the state. Indeed, it seems that nothing can go wrong in the private sphere without a clamour going up for the state to intervene. But the State needs to resist. To know its place. To behave in a way that does not tyrannise the minority. To respect human rights.

Both religion and the State have been capable of great harm in history, most frequently when they have been intertwined. A secular state is no less capable than a religious one of excesses, intolerance, even atrocity. But both religion and the State also have the potential for great good; and I would rather see them operating as checks and balances on each other, than either one surging forward to overwhelm the other.

Allan Norman is a registered social worker and a solicitor at Celtic Knot.

The blight of enhanced CRBs returns

The case of T, R (on the application of) v Greater Manchester Police & Anor [2012] EWHC 147 (Admin) (09 February 2012) concerns a student who had single entry on his otherwise unblemished enhanced CRB: at age 11 he received a police warning for bicycle theft.

Problems with enhanced CRBs are a recurrent theme among issues I am asked to advise on. The bottom line is that they have always been difficult to challenge, but a 2009 court ruling (see my blog post at the time) did seem to offer some hope of a remedy. The main problem with that remedy is that so far as I can see, the police have largely concluded it doesn’t affect them. Therefore, they do not routinely offer a right of reply before doing the damage.

Enhanced CRBs offer real potential for real injustice. Here is why: they include information, the accuracy of which has never been tested, and never will be tested. Just imagine (if you have to imagine – this has happened to real people I know!) that you are arrested upon suspicion of an offence. The police, after investigation, for any number of reasons decide not to prosecute. They can and do still include the information on enhanced CRBs. It may well relate to a very serious crime. Indeed, it is more likely to be included if the crime is more serious, as the test for inclusion is effectively its potential relevance to the purpose for which the enhanced CRB is sought.

So the enhanced CRB alludes to your having been under suspicion of a very serious offence, of which you may be entirely innocent. Guess what? It can stop your career in its tracks. And since you are innocent, you will want vindication. But you can’t get it, because there is no forum in which to get vindication. The reality is, that you are worse off than if you had been prosecuted and stood trial.

The truth is, attacking the content may not be the best line of attack, because of the legal difficulty doing so. There are at least two other remedies to consider:

  • the decision to go for enhanced instead of standard CRB in the first place. The circumstances in which they are permitted are strictly prescribed, but this is frequently overlooked in a risk-averse age which says “belt and braces is best”;
  • the use that is made of the enhanced CRB by the organisation to whom it is directed. The police line is usually that it is for the recipient to test the information, not the police, but rarely is this done.

Back to the case of T. In his case, it was a warning that was included. Untested; but unlike the situation described above, at least the warning was accepted at the time. In my experience, that may not be equivalent to an admission of guilt. It may follow legal advice that it would be pragmatic to accept a warning rather than the hassle of a trial – advice that is unlikely to have borne in mind the hassle caused to your study a decade later.

But even assuming there was an admission of guilt, T’s case was that bringing up his childhood misdemeanours so much later infringed his human rights. The court was sympathetic, but bound by precedent. The real alert, I think, needs to be that the Rehabilitation of Offenders Act is plainly powerless to prevent the blight of enhanced CRBs upon the rehabilitation of offenders.

Allan Norman is a registered social worker and a solicitor at Celtic Knot.