©Karen Ashton Public Law Solicitors June 2014 (c) Karen Ashton1

2  No general right of family to be involved in decision about adult’s life  But: Assessment directions Gathering relevant info for assessments Best interests decision-making Right to choose res placement (c) Karen Ashton

 Binding  Duty to involve carers in CC assessments  And to try and reach agreement on services  When LA thinks its appropriate Assessment which does not comply - unlawful (c) Karen Ashton3

 Must gather relevant info  E.g Killigrew case  Doesn’t only apply to medical evidence NB see Goldsmith case (c) Karen Ashton4

 Mental incapacity - can’t make own decision  The person making decision on their behalf – must do so in BIs  S4 MCA 2005 requires the decision-maker to take into account “if practicable” the views of anyone interested in the incapacitated person’s welfare. (c) Karen Ashton5

 May be duty of confidentiality But:  if subject of info consents then can disclose  If no capacity to consent – BI decision must be taken on their behalf  Disclosure of info in course of assessment may well be in BI particularly if family acting in advocacy role. (c) Karen Ashton6

 When s21 placement  Service user has right to choose  subject to conditions e.g. does not cost more than LA would usually expect to pay unless third party who can top up  If insufficient mental capacity to choose - stat guidance says “advocate, carer, or guardian” should be allowed to do so unless LA satisfied not in service user’s BI. (c) Karen Ashton7

 The new duty to involve  The new duty to appoint an advocate (c) Karen Ashton8

 S9(5) when carrying out an assessment the LA must involve  “Any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the person’s welfare.” i.e. extends duty beyond carers (as defined in Act – adult who cares or intends to provide care) (c) Karen Ashton9

 Not defined  Draft guidance doesn’t say much - just stresses will allow relevant info to be gathered.  But where service user does not have capacity to consent to disclosure of info this duty to involve combined with BI decision making may well create - in effect - a duty to disclose info in absence of good reason not to. (c) Karen Ashton10

 Where individual would have ‘substantial difficulty’ being involved in assessment, care and support planning and revisions of plan.  At first sight might seem to work against family involvement  But duty only arises where there is no other “appropriate person” to represent and support the individual (c) Karen Ashton11

 If service user capacitated – they can decide don’t want to be supported by that person  But where lacks capacity - the LA must be satisfied in individual’s BI to be supported by that person.  See draft guidance and case studies (c) Karen Ashton12

 Jacinta is 26 and lives with her mother and father. She has two siblings aged 28 and 23 who have left the family home. Jacinta would also like to move to living more independently. Jacinta has moderate learning disabilities and finds it hard to retain information. Jacinta’s parents are very worried that she won’t be able to cope living in her own home and are against her doing so. In these circumstances Jacinta’s parents would not be ‘an appropriate person’ who could effectively represent and support her interests.” (c) Karen Ashton13

 “It is unlikely that some people will be able to fulfil this role easily, for instance a family member who lives at a distance and who only has occasional contact with the person, a spouse who also finds it difficult to understand the local authority processes, a friend who expresses strong opinions of her own prior to finding out those of the individual concerned, or a housebound elderly parent. It is not sufficient to know the person well or to love them deeply; the role of the advocate is to support the person’s active involvement with the local authority processes.”  (c) Karen Ashton14

Draft regs – even where there is an appropriate person should still appoint an independent advocate if process:  May lead to deprivation of liberty  May lead to hospital for 28 days or more or care home for 8 weeks or more  There is disagreement between appropriate person and LA and both agree in individual's BI to appoint ind advocate. (c) Karen Ashton15

 Draft guidance appears to envisage that equivalent to the advocate’s role  If this is right then arguably LA should support them in this role in the same way as an ind advocate  E.g. in draft regs, ind advocate will have right to see relevant records (c) Karen Ashton16