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Social services still flouting human rights despite 'seminal' court ruling
Social service workers across the country are continuing to unlawfully remove vulnerable adults from their homes, flouting a seminal court ruling.
Specialist Human Rights and community care solicitor Mark McGhee said that the Court of Protection ruling in the case known as “G v E” – made by the Honourable Mr Justice Baker in March 2010 – made it clear that removing vulnerable adults from the family home was subject to the Deprivation of Liberty Safeguards (DOLS) introduced under the Mental Capacity Act.
But Mr McGhee, a partner with Fentons Solicitors LLP, said despite the ruling and the ordeal his clients in the G v E case were subjected to, some local authorities are still failing to abide by the law. “The G v E case was an outrage, one in which a whole family unit was torn apart on a whim,” said Mr McGhee. “My clients had hoped that their case would put an end to this kind of arbitrary act, and end the pain and suffering of families who can have their lives turned upside down in an instance by social services departments, Adult Safeguarding bodies, local authorities and NHS Trusts. But instead, it would seem that the Court of Protection is still having to deal with a stream of similar cases, and it has to stop.”
Mr McGhee said that according to data received by him, the Court of Protection – the specialist court handling cases where people lack mental capacity – is currently dealing with hundreds of cases.
“Some local authorities still seem to be struggling to make the distinction between safeguarding and acting in Best Interests, an issue that is highlighted within the seminal ruling known as G v E,” he said.
The identities of the family members in the G v E case cannot be revealed, and so aliases are used when Mr McGhee, who still represents the family, discusses the case. He said that the human rights violations were sparked by the school where ‘Michael’, an adult with learning difficulties, attended.
“In April 2009, the school approached the authority to report concerns after Michael had made comments about a cupboard to someone at the school. They immediately inferred there was some mistreatment or something amiss at home. Shortly after this Michael’s mother ‘Anne’ had quite properly reported to the local authority – Manchester City Council – that during a recent holiday he had become agitated and aggressive, something he had not done previously,” said Mr McGhee. “Before Anne knew what had happened, the social workers took the view that Michael should go into respite care and he was whisked away while the authorities ‘investigated’.”
Mr McGhee said Anne – who had been Michael’s foster mother and full-time carer for more than 14 years - was not told where he was being taken, nor was she allowed contact with him.
“During this period his behaviour deteriorated – not surprisingly – and he was prescribed strong medication to calm him down,” said Mr McGhee. “We immediately contacted Manchester City Council to tell them they had acted unlawfully, but were told we were wrong, initially by their legal department and then their counsel. Because of this, Manchester City Council would not allow Michael home to his family. Anne was not involved in any of the decision-making, nor was she able to pass on information about Michael’s dietary requirements or the fact that he liked to go to church,” he said. “In all the time he was kept from his family, he was not taken to church once.”
Mr McGhee said “a legal bloodbath” ensued, involving 18 days of hearings at the Court of Protection, before Mr Justice Baker ruled that Michael’s removal from home “was an arbitrary act” by the local authority, one that “unlawfully deprived (him) of his liberty” and infringed his rights under the European Convention on Human Rights (ECHR).
“Furthermore, Mr Justice Baker made expressly clear that although Anne was Michael’s foster mother, she treated him like a son and Michael loved and viewed Anne as his mother,” said Mr McGhee. “Article 8 of the ECHR – which affords the right to ‘family life’ – should have been applied to all members of the family, including Michael, Anne and her daughter, and clearly their right to a family life was violated when Michael was removed from the home and not allowed to return for over a year.”
Mr McGhee said that during the legal battle to return Michael to his home, the local authority made suggestions of mistreatment and numerous allegations of financial impropriety against Anne. Despite these, there was no basis to any of the claims of mistreatment nor were there any grounds to claims of financial impropriety.
“In all my years of dealing with cases like this, I have never been involved in proceedings which were quite as personal and pointed,” he said. “A highly-experienced senior QC on behalf of Manchester City Council made all manner of accusations against Anne during the hearing in an attempt to discredit her. But there was no need for any of this.
“No-one at Manchester City Council took the time to engage with Anne and discuss their concerns with her first. They didn’t ask Michael, or his sister, if there was any foundation to what they believed. Instead they just disregarded all the rules,” he said. “Michael was unlawfully taken away from his mother and his home - in a modern society that is simply unacceptable.”
In May 2010 – more than a year after he was removed by social services – Michael was finally returned to his family following the bitter courtroom battle. But their fight did not end there. “When a court later ordered the authority to pay the costs for my clients, the council had the audacity to appeal,” said Mr McGhee. “They had brought this all about through their own disregard of the law and then thought that the Legal Services Commission should pick up the tab. Unsurprisingly their appeal was rejected in July last year, and they were also instructed to pay indemnity costs on top.”
Mr McGhee is now leading the family’s fight for justice against Manchester City Council, seeking damages for the Human Rights infringements, as well as the physical impact their actions have had on Michael. “Very early into his period of ‘respite’, Michael’s behaviour deteriorated to such an extent that he had to be prescribed one of the strongest anti-psychotic drugs currently on the market,” he said. “We are also claiming for false imprisonment and misfeasance, for the way the local authority took their actions, we say without due regard for the law and legal process.”
Mr McGhee said he and Anne had hoped that the seminal rulings in this case would serve to end instances where social services were removing vulnerable adults from their homes and loving families.
“But in light of a number of recent decisions, it would appear that many authorities continue to confuse ‘safeguarding’ issues with issues of ‘Best Interests’,” he said, “blatantly failing to appreciate that they do not have the powers to simply remove people from their homes without sound evidence and good reason.
“I have never before seen a judge so damning of social services’ actions in a case like this,” said Mr McGhee. “Mr Justice Baker branded Manchester City Council’s failings as ‘grievous and deplorable’, and local authorities across the country should be using the G v E case to learn from others’ mistakes. They should be paying attention by now, but instead we are still seeing cases reported where similar issues have arisen and similar mistakes made.
“Individuals who work within this area are by their very definition involved in hugely sensitive cases,” said Mr McGhee. “They need to spend the time to investigate before tearing a family apart – they’re playing with people’s lives.”
Mark McGhee appeared on BBC Radio 4's "File on 4" programme on 24 January to discuss this issue. You can listen to the programme here
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