Events
"Taking Stock of the Law"
The conference held on 29 March 2006 at the Britannia Centre, Kings Cross by LPLD in conjunction with the Learning Disability Forum.
There were about 130 delegates roughly 60/40 legal and professionals, carers and parents. The morning was chaired by Phil Madden of Home Farm Trust and amongst many interesting points that he made was that sometimes clarity is an unfavourable position e.g. the Gloucestershire case was a challenge to establish the law as practitioners in the field of learning disability believed it to be but that the courts came up with a different construction making it more difficult to enforce rights.
However as Stephen Cragg barrister said in the course of his talk, it is now possible to make challenges under the European Convention of Human Rights and by using instead of breach of statutory duty our old friend breach of common law duty of care, if the damage to a person is great that the courts will strive to find a remedy in negligence.
Ian Steptoe Solicitor with Disability Law Service, a charity that provides free legal advice for people with disabilities, uses quite effectively the threat of judicial review and has won significant victories. Ian carefully explained the limitations of judicial review and when and where it was appropriate to use it.
The afternoon session was chaired by Philippa Russell OBE and when she gave her talk she emphasised the Disability Discrimination Act 2005 promoting equality for disabled people, equality legislation now and in the future, the statistics and how the new Act strengthens and broadens the DDA 1995. She also discussed legislative and related policy review to address the causes of persistent discrimination and inequality, economic, social and cultural to cover race, disability, gender, religion, age and sexual orientation.
Gordon Ashton, a district judge and deputy judge of the Court of Protection took us on a tour de force that was both illuminating and informative about his work and how the Mental Capacity Act is going to work.
Lynne Brooke took us through the test in Section 3 of the MCA as to whether a person has capacity and if they do not, the Section 1 principles that have to be taken into account and the Section 4 factors that have had to be used by a decision maker. He went through the role of deputies and IMCAs. His main contention was that advocates in the independent sector are ideally qualified to act as deputies, IMCAs, decision makers and as litigation friends. The main thrust was that legal advisers can support advocates before matters come to court by, for example, briefing them as to the law and entitlements so that the advocate can then go to an assessment meeting, speak on behalf of the person to propose a resolution that accords with the law and the person's best interests and prevent disputes arising.
Jo Williams, director of Royal Mencap talked about funding issues, summary of the taskforce report on finance and report commissioned by the Association of Directors of Social Services and is the expenditure leading to an improved quality of life and new opportunities to promote citizenship. She discussed the more extensive use of a direct payment model.
The Code under the MCA has not yet been published and LPLD are considering making submissions to put advocates in the independent sector into a more central role with the concept of advocates from accredited organisations being recognised by the courts. While Gordon's fear is that some advocates push their own agendas but if they are properly trained, understand the MCA and its principles and try to express a person's needs and preferences taking into account their beliefs and values, there will be little risk of that and in any event judges as robust as Gordon will soon identify advocates who are partial.
If any LPLD members would like to post views on any of the matters that were raised please feel free to address the subject on the website via the Forum once established.
