The recent decision that the London borough of Hillingdon acted unlawfully in detaining a 21-year-old autistic man in care for almost a year, rather than allowing him to live with his father, should be a wake up call to councils everywhere.
Hillingdon was found to have wrongfully authorised a deprivation of liberty order under the Mental Capacity Act to prevent Steven Neary returning to his father after a weekend's respite care. The council was heavily criticised.
As the judge said, but for Mark Neary's determination, Steven would have faced a life in public care that he did not want and does not need.
The decision would have resulted in family break up, intense distress and possibly catastrophic long term damage. The cost to the tax-payer of permanent care would have been enormous. Add the staggering court costs of defending their decision in the high court and the real question is how could the council get it so badly wrong?
There is no question that the council was trying to do the best thing but as the judge pointed out this is not enough. What lay at the heart of the problem is that the council found itself making decisions in a vacuum, without outside scrutiny, guidance or support.
In the judge's words, social care is a field that "is not legally coherent and bristles with intricate regulation". Council workers can become so consumed by 'process' (doing the right thing) rather than 'outcome' (doing things right) that there is no proper decision making.
When problems of this sort arise, every council needs access to proper independent support and guidance on best interest and what is lawful. It desperately needs this quickly and at sensible cost; not just to protect the public purse but to protect those who may be taken into care and their families. Even if families have funds to go to court, the delays and unpredictability of court process is the last thing both parties need.
At a time of stringent cuts and the need to preserve every pound of public funding, councils cannot be committing themselves to long term care costs without being sure this is necessary. Even less can they afford the huge legal costs of testing their decisions through a process as risky and public as the courts.
With public sector professionals under pressure to find new ways to deliver savings, they need to think again about how they approach disputes and complaints. Disputes are a massive drain on time and resources diverting these from essential front-line services.
Centre for Justice, an independent, not for profit organisation, is seeing an appetite for a 'fresh' approach that can restore and preserve relationships as well as reduce stress, time and cost.
To meet this appetite the centre has developed a service which provides councils and the public with quick, cost effective and reliable decisions on the lawfulness of actions and proposed actions. A non-adversarial and supportive approach is taken to investigate and adjudicate the issues, and provide the parties with early certainty at minimal cost. Assessors from specialist panels of trained lawyers investigate each case without the need for lengthy formal process or legal representation.
Both parties are helped to reach their own resolution through mediation but, where this does not result in agreement, the assessor goes on to make an award (binding under the Arbitration Act). This results in a prompt, cost-effective, legally binding agreement or award in every case, benefiting local authorities and those they care for. Time and cost savings are considerable, — around 80% on legal costs alone.
Use of the service such as this would have spared Hillingdon the heavy legal bills it faced and quickly ensured the council and the Nearys the right result. Reputations and dignity would have been left intact, distress minimised and relationships preserved.
The public sector can no longer afford not to use this approach.
Anthony Hurndall is the founder and director of the Centre for Justice
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