Two Secretaries of State and a good deal of the Civil Service – writhing, but not very anxiously, before the Courts!

Analysis of the JM case

The attachment here is a report on what the Court has had to say about the Government’s continuing failure to do anything to restore the rule of law to the DoLS arena, with regard to its stance on not finding any new money for councils to use to abide by the due process implications of article 5 of the European Convention.  It makes grim reading for all but a few – advocates and trainers, that is, for whom a role as a Relevant Person’s Representative, or in supporting RPRs, clearly beckons!

In a previous age, members of the government whose behaviour had attracted such polite but acerbic criticism from the judiciary would surely have felt the need to resign. In previous case law concerning responsibility for unlawful backlogs in the Mental Health Tribunal system, the money was found to put it right. I do not know how such cynicism or arrogance on the part of government, such that upholding the rule of law is not a good enough reason to fight the Treasury, has managed to insinuate itself, since then, but we will all be the poorer for it.

In a baleful irony, this judgement was handed down in the same week as the Care Act Statutory Guidance was reissued, including a re-written Safeguarding Chapter, with not a single word in it, on the impasse over RPRs and litigation friends, and the backlog in the Court of Protection – or on what any of it means for the value of the “Making Safeguarding Personal” initiative!


Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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