Using case law in social care practice

[Introduction]

This is a Research in Practice podcast, supporting evidence-informed practice with children and families, young people, and adults.

Claire: So hello, I'm Claire Williams, a Research and Development Officer for Research and Practice, and I manage our case law and legal summary publications for the adult side. I’m also here with my colleague, Luciann.  

Luciann: Hello, I'm Luciann Blake. I'm also a Research and Development Officer at Research In Practice, and I manage case law and legal summaries for the children and families side.

Claire: We're here today to have a conversation about using case law in practice, and we have with us Laura Pritchard-Jones, and Tony Anyaegbu. Laura and Tony, would you like to briefly introduce yourselves, and let us know a bit about your backgrounds and your experiences with case law?  

Tony: So, this is Tony Anyaegbu. I am currently a manager for a DoLS [Deprivation of Liberty Safeguards] Service, and I am also the MCA [Mental Capacity Act] lead. I'm also an approved mental health professional, and a best interests assessor. That's the experience I've had in so many years. Obviously I'm more involved in, kind of, leading and management now, but I'm also, kind of, actively, actively involved in improvement of professional practice and best interest assessments. I've worked in the field of mental health and mental capacity in many years, and my interest in case law, I mean whether or not I have an interest or not really, it's just that the nature of the job we do is underpinned by legislation, by case law, it's ever evolving. So really you have to keep up with what's happening to be able to, kind of, influence decision making, you know, in your practice. So for me, I'm also being a manager, I have some kind of an additional responsibility to know where things turn, you know. So that if you're signing off assessment, you know, you're a bit more confident in this actively signing of your turned in assessment. You have some kind of, some, some, some grounding, of the rationale for making any decision really. So that's my role and my interest in case law, and I hope, you know, I'll be able to share my experience today really with everyone.

Claire: Great, thank you Tony. Laura?  

Laura: Yes, hi. I'm Laura Pritchard-Jones, so I'm a senior lecturer in law at Keele University. And I also do quite a bit of work, independent work, in terms of training and research. Predominantly, so my background predominantly is with a research specifically in things like mental capacity law, and mental health law. But generally speaking more of an interest also in adult social care law, so, you know, things like the Care Act and, and, that type of legislation. I also co-draft the adult's case law and legal summaries every month as well. So I suppose my interest in case law in particular derives just from the fact that I'm a lawyer by background, by training. Not a practising lawyer, an academic lawyer. And it's really, sort of, the bread and butter of what I do on a daily basis, so, you know, a big part of my role in order to be an effective academic, in order to be an effective researcher, and an effective teacher, is keeping up to date with that case law. So, and I'm sure that's part of the conversation that, that, we'll go into a bit later on. So, yes, it's my bread and butter, being interested in case law and particularly in this area is really, you know, I couldn't do my job without it.

[What is case law and why is it important in practice?] 

Claire: What is case law? And why is it important for social care practice? And why is it important to understand it and keep up to date with it?  

Laura: So, Tony mentioned, obviously, when he was explaining particular, his interest in case law, that actually for most social care professionals, their jobs rely on, and the underpinnings to their job is around, is the legislation basically in any particular area. So, so for best interests in particular, assessors in particular, like you said Tony, you know, the Mental Capacity Act is the underpinning there of what you do as best interest assessor, as an approved mental health professional, the Mental Health Act is the underpinning of what you do. Similarly for social workers, many social workers, the Care act will be, you know, really really crucially important. And also for those from families perspectives, you know, things like the Children Act, that's also going to be incredibly important for them. It underpins what they do and their obligations, it spells out their legal obligations. And I feel like this case law is really important because case law provides guidance in many ways, on how to interpret and how to apply various sections of those pieces of legislation. So … it enables practitioners to do their jobs in basically the most up to date way. Because case law is what, what, tells them what that interpretation of that piece of legislation should be, basically. That's effectively what it is, it's, it's, you know. In terms of technical terms, case law is, it's a case that's been heard before the courts, either a factual case in the court of protection, for example, determining what should be done for a particular individual or whether they lack capacity, or it's interpretation of a piece of legislation. And it's a case that's been heard on that matter, and it's a series of judgments, or it's one judgement being handed down by a court, that determines that particular issues. So on a technical level that's what a piece of case law is, but obviously there, you can see why it's so important for social care practitioners to be aware of that, because it also impacts what they do.

Tony: The nature of the job for practitioners, both in health, social care, and obviously in health, is that sometimes you could end up with different interpretations of what you believe is actually the right thing to do. If you take in the field where I manage, you know, best interest, the whole concept of best interest, to an extent, there is a subjective element to best interest. Even though it's meant to objective, but there are times where you end up in situations where someone might deem the same decision, though, might decide, I don't believe this is the best interest of the person. And you end up with somebody else, who undertake the same assessment as well, and comes out in the other way again. So there, when you end up with, kind of, a potential conflicts, in you know, decision making, what case law allows us to do, that, you know, we're able to take such matters before the court, and the court can actually bring in additional clarity, you know, for practitioners. So what it then allows practitioners to then do, that, you know, next time, people are then able to, kind of, refer to that case, you know. And put aside their own subjective view, and just say, you know, even though A, B, C, D, would have wanted this to happen, based on the last case, you know, we think we're safe, you know, to effectively decide on one way for the others. So for really for practitioners, it bring an additional clarity. Especially in potentially complex, you know, cases.

Laura: I think a really good example as well that almost all practitioners would be, be, aware of. You know, whether you come from an adults or a families background, in terms of practice, as a social worker. If you think of, sort of, one of the biggest key cases or pieces of case law that's happened, probably in the last ten years, certainly around the Mental Capacity Act, we think of the Cheshire West case, don't we? And that was, basically, a case that interpreted, provided an interpretation, a legal interpretation of what the concept of deprivation of liberty meant. Because obviously that then has knock-on effect as to who has to go through the deprivation of liberty safeguards processes. So, that's a really good example of a piece of case law and the impact that it then has on practice. Because, practitioners now, and as you'll know Tony, obviously being a BIA [best interest assessor], have to be aware of what a deprivation of liberty is now, according to what the supreme court said in the Cheshire West case. You know, that acid test. And so that's a really concrete example of a piece of case law that actually, for practitioners, is really really important to know, and to apply, because it dictates their practice. It dictates who has to now be considered possibly deprived of their liberty, and go through the best interest assessment process.

[Challenges in understanding and applying case law] 

Luciann: Thanks both for some really key reasons why it's so important. The next question that kind of leads onto that, which is, what are some common barriers or challenges that practitioners might face in applying case law to the decisions their making, to their practice?  

Tony: First, I guess, for practitioners, first and foremost would actually be keeping up really with case law, would be the first, you know, perhaps kind of massive, really. Because, like I said, case law kind of ever changing, you know. You could end up with a decision of the court today, you know, that could be challenged in a few months’ time. And you're here applying on decision, and potentially, you know, within a few months, what you thought was actually, you know, supposed to be, you know, the legal position, has changed, really. And so, it's kind of important, I mean a typical example would be the case of, you know, whether or not you apply someone who has got a community DoLS, and whether or not you can potentially use community DoLS and DoLS together. These cases have gone before the courts, you know, one decision decided yes, you could get a decision decided now, and we've ended up in, you know, a situation where we think, you know, it's acceptable, you know. So, if you don't keep up with what's happening, you could potentially really, you know, make a fraught decision. So that would be a barrier. The other one of course, that you're dealing with humans here, so, I mean at the end of the day, there are certain caveats also with certain cases. Because you know, some of the decision had to be put in context as well. Then, you can never completely apply a specific, you know, a typical example would be a case of best interest case. Where, there was a case many years ago about a man, I think it's called Wye Valley NHS Trust v. B. And it's a case of clinicians wanting to actually amputate the leg of a man who was deemed to lack capacity, and who, if that intervention were not provided would probably die. If you look at clinical best interest decision, that would have been a given, because, you know, you can look at the risk, you know, see that we do this or you die. And of course, knowing that, you know, duty of care applies, that would have been a given. But because there was a strong objection on the part of this man, the case had to go to court. And surprisingly for all those who were involved on the case, the judge, after looking at the case decided, you know, to not agree with the intervention, on the basis that, you know, even if you lack capacity to make a certain decision, you know, your wishes, you know, and feelings should be given weight, you know. What you want to happen to you, irrespective, what happens of course with clinicians that, you know, I mean not everyone, but you sometimes hear clinicians say, 'Oh they lack capacity,' if they're dealing with an older person with dementia or elderly, you know, they quickly sometimes justify their intervention with the answer they lack capacity. Almost assuming that the person who lacks capacity hasn't got a say in what you're doing to them. So what that case actually, you know, did, was shake, you know, best interest decision making for everyone. They actually said, hang on a minute, we accept that, you know, this man lacks capacity, but what we cannot accept is that you completely overlook, you know, what he wants to happen to him, because he's entitled to his wishes and feelings. And you've got to give that weight. So that, was surprising. But what he then did, you know, for professionals involved in mental capacity and best interest decision, is that, you know, each time you are then having to make those decisions, you've got to be careful to make sure you give weight to the wishes and feelings. But then, you know, the law did not say, you always have to, you know, decide. Your decision does not always have to be aligned with the wishes and feelings of the service user. What it's saying is that you've got to give it weight. So if you're not interpret that properly, you could potentially making very, potentially negligent decision, because you're erring on the side of wishes and feelings. So you can then see how, potentially, because we've also had many other cases that have gone to court, where the courts have gone against the wishes and feelings of service users. So really, so that's the difficulty, sometimes is, if you don't keep up with the vast area of, you know, case law that's out there, and also understand the commentary within case law. That clearly, you know, effectively puts that in context, you could potentially use a particular case law, and apply it wrongly to your own case. So that is a big challenge, really, probably the most difficult challenge for professionals really.

Laura: Yes, absolutely, I'd agree with that definitely. And I think also case law as a, sort of, a thing, can be quite complicated to navigate as well. In particular if you're not legally trained, as a, as a professional. So, you know, some of the cases can be quite dense, and they're dealing with really quite in depth legal issues. You know, a really good example of that, a recent example of that, is a local authority in JB, which came to the Supreme Court last year, and was basically about what, how to we interpret section three of the Mental Capacity Act. When we're talking about capacity assessments for a person, as to whether they can have the capacity to decide to engage in sexual relationships. You know, and there were some quite dense legal points in there. So navigating some of those legal points can be quite tricky, and I, you know, I remember even for me as an undergraduate, one of the first things that my personal tutor said to me when I started my law degree was, learning about law and particularly case law is like learning a different language. So I think, you know, there's just the practicalities as well of actually getting your head round what the judges are saying in any particular case and particularly if it's quite a, you know, a complicated legal issue in there. So I think that's one of the ways that, that, you know, helping practitioners to understand case law it's very much about breaking it down as to, you know, what are they key points and what are the key implications for practitioners from particular cases.

Tony: Yes I think the difficulty with professionals as well, yes, I think the breaking down part is, kind of, key really because with case law as we know, is kind of lengthy, really, you know. Their commentary sometimes, I mean, depending on, you know, the resource you have you might have some very good legal resource where they, kind of, give you a nice commentary maybe in a one A4 page but by and large caseloads really, really detailed and really professional with all of that they have to deal with. You know, they don't really have the time, you know, to, kind of, look for-, what they tend to do is, kind of, look at the headline really. You know, looking at the headline potentially, you know, yes, depending on how you look at that it's really, you know, it's very tricky isn't it? Just because of the headline as we know for a good way of, kind of, you know, improving the practice for you. Yes. So anything that breaks it down for them really would be helpful. And I really also, kind of, state clearly that, you know, this has got to be seen within its own context and this is really, you know, what happened there that you can never really completely complain especially because of MCA best interest, you know. It's, kind of, very, you know, case-specific really.

Laura: Yes and one last thing I think that's come to my mind in terms of some of the barriers and challenges to, for, for case law is that in reality case law, you know, if a particular case is handed can sometimes think make things harder or harder to understand as well. You know, so I think Tony you mentioned the case around, you know, cases around community DoLS for example, you know, it's not provided a solution it's just provide a little bit, almost like a, of a, of an ad hoc fix, a temporary fix. But also, you know, going back to the Cheshire West, that made things harder generally for a lot of practitioners and a lot of local authorities because it basically lowered the threshold as to what deprivation of liberty was. So that meant that loads more people might come under this process, you know, might have to be assessed for the-, under the deprivation of liberty safeguards. So case law can actually sometimes not clarify things, it can actually go the opposite way and it can make things maybe harder to understand or it can make things more difficult.

Tony: Yes. You're spot on, exactly. I think that would, that yes-, that would have been my final point which I get-, like I said, because it's also sometimes ever evolving you also have the right of appeal unless you keep up with a particular case, you know, consistently yeah. It's really difficult to show if it's one, you know, cases around ordinary residence, you know, it's one, you know, at what point do you agree, you know, responsibility for someone, you know. Today you might think, you know, the placing authorities responsible, you know, tomorrow you might think, you know, where the issues are, this is really ever evolving and some of the to- and fro-ing disputes we have, you know, between local authorities always around, you know. You're understanding of case law, you know, versus, someone else's understanding of case law. So, yeah, it, kind of, keeps you almost thinking of you want-, I mean we have a very good system really, the appeal system is good but you can imagine if you had a system that was very clear right from the beginning that everybody accepts, you know, that would have made things a lot more clearer. Obviously we're not advocating for that but because of the right of appeal, you know, that means that, you know, decisions unless you've all the way to the supreme court, you know, if it hasn't gone all the way to the supreme court and there is a right of appeal then you can see potentially a different outcome to what you believe should be the case.

And of course, the other one of course, you know, knowing fully well that we are also dealing with humans here, so sometimes how does a particular case law, you know, affect what you think should happen to someone for instance. You know, as a professional you might have a view, you know, that this is a practical intervention that should be, you know, really be provided for this person, you know. But if, if a particular case is, kind of, decided that this is what should happen, you know, how do you then square that, you know. Have you got enough legal justification, and that could also be the other way round but yeah, you know, so. We have to, kind of, weigh case law, you know, against evidence-based practice even if again you knowing fully well that you're having to deal with human beings you, you can't consistently be telling them, 'I can't do this for you because of case law.' You've got to find a way to be able to, kind of, decide on a particular intervention knowing fully well that, you know, you are dealing with people, you know, with their own difficulty, you know, with their own problems, you know. So, yeah, this is, yeah it provides a lot of solution but it also provides, you know, a lot of headache for professionals as well.

Laura: Let's not forget as well that, you know, it, it-, in social care as an area, how many legal changes have there been over the last 10 years as well, so, you know, it's that, that's such-, it's such, we've got a running joke in, sort of, the legal academic world that actually, you know, if, if you want an easier life go and research land law because that hasn't changed since the 1920s. But, you know, if you think about this area of law, social care law, both adults and children areas of law, you know, we've had huge legal changes. We've had the Care Act, we've had, you know, changes to the Mental Capacity Act, we've had the insertion of the Deprivation of Liberty Safeguards in 2007. We-, now we've potentially got the Liberty Protection Safeguards coming in as well. You know, naturally this is just a really, it's an area where you need to-, basically your full-time job could be keeping up to date with case law. So it's, it's, if you don't-, if you've got a million and one other things to do as part of your job as well, which you do if you work in social work for example, you know, it's just so hard to navigate the, the, the tons of case law coming out of the courts.

[Examples of case law being applied in practice] 

Claire: Absolutely. Well you've already given us lots of practice examples already so that was my next question. If you had anymore examples of where case law was used to influence practice and thinking I suppose, more specifically, what the benefits were for that. Have you got any examples of that you can share?  

Laura: So I think, just because I mentioned it the JB case. So again, very, very briefly. The JB case was about what information does someone have to show that they understand around capacity and engaging in sexual relationships. And the particular point of the case was to decide, does the person have to show that they understand that the other person must consent, basically. That was only handed down in December last year, so it's a relatively recent case. It'd been going through the courts for, for a while but the final decision by the Supreme Court was handed down last December. And the court held that they did basically. So part of that relevant information that you're assessing if you're undertaking capacity assessment around a person’s ability to decide to engage in sexual relationships, is you have to assess their understanding of the other person’s-, the fact that the other person has to consent. And so what that I think has done for a lot of practitioners that, that I've worked with that, so, kind of, example not obviously being a practitioner from social care myself but conversations that I've had when I've been training and teaching around that case is that it's provided a much more concrete steer for practitioners to be able to go into a capacity assessment with that information and the ways of also-, now, knowing now that they have to look at a person’s understanding of the other person’s right to consent and that the other person has to consent.

But they can go in much more equipped to that capacity assessment knowing the types of conversations that they're basically going to be having. Because a capacity assessment is effectively a conversation with someone isn't it? It's an in-depth conversation about their ability to make a decision about something. So, that's clarified one particular aspect of what that conversation has to be but also in knowing that a person, a practitioner can go in with lots of different tools and methods to try and explore the notion of consent with the person. And, and I think that's one really good example recently of the way that a piece of case law has had a good outcome in practice, because practitioners feel much more clear but also they feel prepared because they know, 'Right, I know now that I'm going to have to have conversations around consent with this person so, consenting sexual relationships, so how can I go through looking at some of the tools that they use in sexual education for example, around consent.' So I think that's one example that springs to mind immediately for me.

Tony: Yes. And I guess if we go back to the case I mentioned Wye Valley NHS Trust v B, I think what that actually did, you know, was effectively, provide, you know, some kind of ammunition to staff, you know, professionals who probably had that, kind of, mindset before anyway. Who were not, you know, you know, kind that would, you know, I mean right of anyone who lack capacity. And because of what this case effectively did in effect, um say, irrespective of the status of capacity, you've got to apply the same principle, you know, as to what does the person want to happen to them. You know, you've got to-, and if you're going to then deviate from that you've got to provide justification so it's no longer a case of they lack capacity, you know, in that case, whatever they say, you know, it's no longer relevant I make the decision or me as a professional I know best, you know, what should happen to them. What the court has actually said is that, you know, 'We accept that, you know, but at the end of the day if you're going to decide against what they want to happen to them you've got to actually provide strong backing.' So in most of the capacity assessments now you'll see that professionals, you know, whether in the world of best interest assessment for DoLS or generally speaking just normal day-to-day capacity assessment, people are now expected to find out what does the person want to happen to them.

[Applying case law alongside other forms of evidence] 

Luciann: You've both, kind of, touched on this already in terms of the interpretation and the application of case law, so we-, my next question leading on from that is what are your perspectives on how to balance case law alongside other sources of information, like research, practice expertise or lived experience, when working in direct practice?  

Laura: So, I think the only thing that I'd offer from a, sort of, a technical perspective with my legal hat on is that case law is more binding that than stuff. So, in terms of the practitioners, you know, Tony's mentioned the AJ case, that's now legally binding so, actually, that has to be not necessarily at the forefront but that has to be implemented in practice. Practitioners, BIAs, you know, when they're thinking about RPRs, who to appoint as representatives, this to be followed basically. So, the kind of, the weight or the role that case law plays is slightly different, I think, to the role of, of the other types of things. It's not-, it's not more important or less important, it's just that practitioners have to know about certain cases in particular and they have to be followed because as Tony mentioned, I think, earlier on in the conversation, if that's not done, then they're leaving themselves potentially open to legal challenges. But, I think, in terms of more broadly balancing it, I think what Tony's done so far is done a really good job of explaining that it can be really difficult to navigate because-, and it's a term that you keep using, which is really, really good, you know, you're working with humans. You know, if you're working in this particular area, you're working with humans and, so-, you know, I have the advantage, as a lawyer, I can just think, 'Oh, what does the case law say?' That's great, I can just get my head round the case law, but practitioners have to do that while they're balancing a million and one other things and navigating a really complex or difficult set of circumstances or a really messy situation that they've got as part of their caseload.

So, I think it, it can be a challenge to navigate the facts of a particular case but also all the facts of the particular situation, while also being aware of that case law and also having that obligation to think about, well, you know, how do we use research in this, what does research tell us about, you know, the, the way that we approach a solution to a particular situation. But, for, for me, in terms of case law, that has to be quite central in terms of the obligations and practitioners understanding their obligations.

Tony: Yes, you know, spot on, Lauren, I think, yes, you don't really have much leeway, obviously, unless, you know, like, like I said, I mean, in the-, in the area of MCA best interest, yes, of course, you know, then go with the content of decisions so you have to apply the human side of things when you're dealing with a case. And, because we're dealing with capacity, you know, decision time specific really, you've got leeway to effectively look at that individual situation and apply what you see there, with, obviously, with reference to case law to be able to, kind of, justify but at the end of the-, definitely in the field of MCA, you know, best interest, you know, you are allowed to look at that specific situation of the case and make a decision for what you believe is right for that patient, so long as you're acting outside of the parameters of the law, you know, but allows you.

But, evidence base and case law, for me, I think are quite aligned really because what, in most of the cases really, what the majorities tend to do is effectively, you know, look at evidence, you know, they normally call for evidence, and majority of the cases, you normally feel it's, kind of, almost like they're actually rubber-stamping a decision based on, you know, clinical evidence, for instance. I can give an example for you in terms of this, we, we-, there is a, a case that we know around covert medication, AG v BMBC. What that case has done for us, I mean, before this case, I mean, if you went in and did your standard DoLS assessment, you look at the circumstances of the case, you know, if the criteria was met, you know, you would, you know, recommend that DoLS is authorised and then that would be authorised, without specifically giving out, you know, you know, elements of restrictions and without necessarily even seeing covert medication as a restriction. What the courts have actually done is actually almost shine a light on covert medication and actually said if you're undertaking an assessment, you know, within a DoLS, or generally, but definitely for looking at DoLS, and someone-, because what you're meant to do within a DoLS process, you're meant to look at individual restrictions, isn't it. The totality of those restrictions potentially, you know, lead to a deprivation of liberty, but you're also meant to be looking at them, you know, individually to, kind of, find out, you know, best interest justification for all of them, whether or not due process has been followed.

So, covert medication was highlighted in this case as a restriction that wasn't necessarily picked out because what happens with a BIA that-, it is when you've actually seen evidence for why a restriction has been applied that you can then go and actually say, 'Having looked at the totality of the restrictions, the support care, the support package, you know, I am satisfied it is in this person's best interest that they be deprived of their liberty.' But if you haven't seen or if you haven't commented on all the restrictions, we're not quite sure exactly whether or not your decision would have been the same had you seen them, and if it's not written, there is no way for the person reading it to actually be sure that you actually noted that. For instance, this person has actually been pinned down and injected maybe three times a day, you know, I'm using that as an example, you know, you could have a situation where someone has to be restrained, you know, three or four times a day, you know, potentially in their best interest, you know, to, to keep them safe. You have to look at that, isn't it, question why that is happening and then decide, 'Actually, I've looked at everything else, I've looked on the paperwork, I've looked at the condition, I'm satisfied that due process which is around mental capacity assessment and best interest decision, was followed.' Because you're not the decision maker but you want to give out and test out and challenge, you know, the authority on that this is happening.

So, in the case of covert, this was not necessarily seen at the time, you know, as a big thing. The court picked up on that because, really, if you're covertly medicating someone, you're hiding it, you know, so there is an additional layer of restriction is applied. You know, for you to hide it, it means that the person doesn't want it, you know, and if they don't want it, you're now having to effectively give it to them without their consent, you know, whether or not they lack capacity, you're hiding it. So, the court effectively picked up on that and actually said where you're doing a DoLS assessment, you've got to be clear, you know, clearly state, you know, if covert medication is actually being used as a restriction, which is what it is, you know, check out whether or not the relevant MCA best interest decision was applied because for you to then use that, you've got to make sure that whoever decides, you know, the GP or the mental health team or whoever is deciding, you know, have actually provided justification for that. They've assessed the capacity of the person and it actually comes out with the relevant people that the person lacks capacity to provide a justification as to why this should happen, because remember, if somebody says no, there are two options there. You could either say, 'Okay, they no, we're not going to give them the mediation because it might be too distressing to them.' Even though we think they need it, we might say, 'It is in their best interest not to put them through this level of distress just to give them this medication.' Or you decide not to act and that's also a decision. But where you decide to act, you know, against their wishes and feelings, then you also have to provide a justification but you can see that there are two options there, you've tested, one act, one don't act.

So, if you've acted, we also need to be sure that there is consultation with the relevant people and key part there would be the relevant family member, the person with LPA [lasting power of attorney] or an advocate so that it doesn't look like, you know, you are the doctor, you are the clinician, you've suddenly decided I know what is best, I'm going to give it to them, bearing in mind they don't want that. So, BIAs now have to actually test out these, give out these, you know, request for evidence as to whether or not this has been followed and if it has, you need to make sure that that is included in your report, you know, so that people like us, when they're signing it, will then say, 'Okay, there's covert medication, we can see that the right process has been followed. There is evidence that the person lacks capacity and the relevant people have been consulted.' And then importantly, what the court has also said that you need to add a condition that this is reviewed and that's also key because the fact that, you know, you need to use a level of restraint today doesn't mean that level of restraint would also be justifiable in three months’ time or in six months’ time.

Laura: I think some-, for, for practitioners, it can be helpful to think about case law as, sort of, providing a series of prompts or questions that this, this other stuff, things like, you know, research and practice expertise, can feed into. So-, and, and in particular, you know, when you do find more advanced practitioners, those with the, sort of, the advanced knowledge and understanding of the MCA and the Mental Health Act, you know, those from practice backgrounds like best interest assessors, like approved mental health professionals and this is what we do. So, when we run the best interest assessors training, you know, one of the things that we set out by explaining to students is that, actually, this course leads them into a much more advanced level of understanding and knowledge around the MCA and obviously, specific areas of the MCA, like the DoLS, and part of that is having a more advanced knowledge and understanding of that case law, not as things-, exactly like Tony's mentioned, cases like AJ, like AG, with the covert medication and obviously things like Cheshire West and all those cases. And, I think what that does and what practitioners are, are very good at doing often, when they're doing those courses and certainly when they come out the other side of those courses and they go into practice, is understanding case law as a series of prompts basically, exactly like Tony has described when he was talking about the covert medication case. So, you know, I know now what the case says, I know what, what, what AG or I know what AJ or I know what Cheshire West says, okay, so knowing what my role is then as a practitioner, either as a best interest assessor or an AMHP [approved mental health professional] or, or, you know, whatever particular hat you have on, what does that mean that I have to do in my job here?

So, what questions do I need to be asking? And it's that that-, it's, it's in that area in particular that all that other stuff feeds in. It's the input from the people with lived experience, it's the input from the individuals themselves that are the centre of these cases or the, the centre of the, the case that the situation you're working with at the moment, you know, it's the family members input. It's that research experience, it's that knowledge of what's being said in research about this. So, I think the case law, kind of, provides a bit of a prompt for all of that other stuff to come in when it's implemented well by practitioners.

Tony: Yes … and I think that, that, that the human element of that, of course, which case law doesn't do, of course, is, kind of, the individual element of that, which research brings, you know, so one of the-, one of the areas I'm currently involved, because I'm also, kind of, currently involved with a doctorate really, so what, what we haven't seen, which is what I'm trying to explore, either around, you know-, the MCA, as we know, is, is, kind of, sold us this lovely piece of legislation decision-making, you know, tool to support decision-making and it's-, yes, by and large, that's what it is really, but we also know that it has its problems, I mean, that's all we've been discussing here and if you look into the field of the Mental Health Act, we also know the Mental Health Act is there to protect the person but also to protect the public. But, but when you then look at numbers within the Mental Health Act, you know, even though we accept, you know, you know, that this is there for a good reason, there is always that question at the back of your mind, is that why do we then have over-presentation, for instance, for black and ethnic minorities, you know, within, you know, the mental health system, you know, why? I mean, that's the question, that is, like, why, if you-, if you look at the number for inpatient detention under the Mental Health Act, you have many more, you know, black and minority ethnic, you know, service users there, you know. So, even though the case list, kind of, law, legislation have given us the tool to act but then you then begin to ask why then been disproportionately applied on a section of society?

And that is where that individual element will have to give you and only find out what is happening there when you look at individual. Because, of course, you know, qualitative, you know, research is very specific to that case but what it does it allows us to then begin to think ‘hang on a minute, we know what the law says, we may, may-, I probably need to take a little bit more time, you know, when I'm dealing with a particular section of society because for whatever reason, you know, the way we applied this, maybe we're missing something or there's something there we're not doing right and may need to think a little bit, you know, outside of the box here.’

Laura: Let's not also underestimate how important case law can be in helping practitioners to challenge but also helping service users and people who are at the centre of this process to challenge certain decisions, that's where research can also come in to help us think about how we can actually improve. We talk about legal literacy, don't we, in this profession, you know, how can we then improve that legal literacy among the people who are at the very centre of these processes because that can be the most empowering tool for them, you know, and, and improving their legal literacy around case law can be really, really empowering for them. You know, and there's quite a few resources out there helping them to, to put that into practice in terms of, you know, templates and helping them to challenge perhaps decisions that have gone before. So, I think case law can be really important in that regard as well, as a tool for challenge, both for practitioners but also for people who are at the centre of these processes that we're talking about.

Claire: Just before we, kind of, start to wrap up, just a few final thoughts from both of you on, on how we can be, sort of, better informed around case law and, and, and to apply it to our work in social care practice? And any final thoughts or tips you have, like, around that that you can share with, with our listeners?  

Laura: I think one of the things that's important, and it's always an approach I take in terms of teaching-, because I do teach both at Keele and, and beyond that, you know, mostly practitioners, so mostly those from qualified social work background or nursing background or occupational therapy, counselling, and I think-, we mentioned earlier on in the conversation about how complex case law can be and how difficult sometimes actually getting to the bottom of what a piece of case-, piece of case law is saying can be, I think one of the things that helps-, I mean, there's a wealth of resources out there and I know Research in Practice, obviously, we've got the case law and legal summaries and one of the things that we do in those is try to really drill down more into the implications for practice of what that particular case means. But I think one thing that's helpful, certainly from my experience working with practitioners, is for practitioners to be given an opportunity to see how that might actually apply in practice. So, you know, a big part of CPD, for example, in, in many of the professions that we might be talking about is having an opportunity to not only keep up to date but also thinking about how that keeping up to date can be implemented in practice, and having a space where practitioners can talk about these things and actually not necessarily have a trial run but actually get to grips with this case law in a situation that might be hypothetical or it might be, you know-, it might be not an actual case that they're working-, very often, practitioners can see the link between case and, and, you know, situations that they're encountering in practice anyway. So, very often, when we're talking about the JB case, practitioners will always say to me, 'That sounds exactly like a case that I've been working with.' Or, 'That sounds exactly like a situation that I've had at work.'

But having a space to discuss amongst themselves as practitioners and also with those in managerial positions and their supervisors, perhaps, at work, the implications of those cases for practice, rather than just learning about them in the abstract, thinking about actually how they might translate that, that case and the findings of that case and what it's actually saying into practice is probably one of the most helpful things that practitioners can get.

Tony: So, there needs to be a way of making this some kind of, you know, mandatory, you know, whereby even if you, say, once every year as a bare minimum, once every six months, where there is, you know-, people are encouraged to block out an hour or two, you know, where this is looked into, what I've done to some kind of, you know, scenarios or just, you know, discussion, PI support, you know. What, what I do, where I am and, you know, amongst everything that I do, you know, when I do have time, that we'll have some, kind of, forum and the idea of having that forum, you can, kind of, again, look at practice examples of how people can actually, you know, apply, you know, what we know good quality mental capacity assessments should look like and discuss some of those issues and, of course, at the same time, provide updates, you know, around that. But this is, kind of-, it's fit in maybe every quarter, you know, it's not purely, you know, a case law legal session, it's, kind of, workshop, you know, that happens. The BIAs also have a forum where we look at, you know, case law. Obviously, for the BIAs, it's a lot more formalised because that's my-, you know, these people are having to, kind of, deal with the provision of liberty so it's quite important that they keep up with that. But I think, yes, there needs to be a system where, you know, this is done in the most structured manner really for staff, you know, and I think somebody would need to, kind of, help them do that because if you leave it to them, amongst everything else, really, they'll put that at the back of-, or they would expect somebody else to know about that, you know, and potentially so that they can go to that person if they need advice.

What we know, especially in the field of MCA, MCA really is not-, should not be seen as some kind of specialist area of practice, it's really, you know, a field of practice that anyone is able to apply and this is why the movement from DoLS to LPS, some of the people who happy about that is that it completely, you know, demystifies the whole, you know, best interest DoLS process and puts it back, you know, to front-line staff, perfectly, 'this is what you've always done, this is what you're expected to do, we're going to help you,' you know, create a great understanding but we know you can do that, you know, so do that, you know, don't expect this to be some kind of specialist knowledge, you know.

And then finally, there is also a big responsibility on the part of managers as well, you know, some managers, again, managers are having to do a lot more now than before. They're also in the same boat of not being able to keep up with all that's happening but there is probably more onus on the managers really to keep up with that because really, where there is, kind of, lacking of knowledge within their staff, the only other person that can support that or that can challenge that or improve that would be the manager, but where the manager is often lacking in that area, it becomes quite tricky. I mean, some staff tend to come to me for a lot of complex cases but there is no reason why, you know, some of those cases could not have gone, you know, to their manager before. So, really, almost like a two-tier process, isn't it, where we target staff, we also find a way to target manager to improve, you know, the knowledge, you know, or the up to date-ness of managers around case law.

Laura: Yes, and I think it's about embedding case law and, you know, it's about-, it's about embedding case law just on a day-to-day basis.

Tony: Yes.

Laura: You know, through this, as exactly what Tony's been saying, you know, and I think this is more present in some roles that you find in social care, particularly for best interest assessors and, and approved mental health professionals because, you know, they have to be experts in that case law and it's part of their day-to-day practice, going into care homes, assessing whether someone's deprived of their liberty, all that case law is swirling round in their minds and it's really at the forefront of what they're doing. So, it's a day-to-day thing for them. I think embedding it more broadly within this area of practice is perhaps quite a big challenge and I think one of the things that I've always tried to do when, for example, drafting practice briefings for Research in Practice, for example, is put that case law in, just embedding it with an explanation because it shows how it can be used, it almost, like, provides a tool as to how it can be used on a day-to-day basis for practitioners who are navigating situations. And this is why, obviously, the, the, the other resources that you've got at, at Research in Practice, like the Legal Literacy Change Project, that has got a whole suite of resources for practitioners that, that-, in, in helping them to navigate case law and working out how it might be relevant to their practice. That's why things like this are, are so crucial. So, practitioners aren't just doing this cold with that case, you know, like Tony said, clicking onto a link and just bringing up a whole host of text to the case. Actually, what those types of things do, both the case law and legal summaries, the practice briefings, the Legal Literacy Change Project's resources, is show practitioners how they can move from understanding the basics of what a case is saying into their practice and actually almost providing that translation into practice for them.

It's, sort of, like a, a tool for, for translating that, that piece of case law into practice, but I think certainly embedding case law in that way, and that's why those tools are so important, embedding case law on a day-to-day basis in order to improve practitioner confidence and understanding of navigating case law and what it means and why it's important. And I think, like I say, for some professionals or for some perspectives in this, particularly if you're an advanced practitioner, like an approved mental health professional or a BIA, that's part and parcel of your day job anyway, but for practitioners who aren't or who perhaps are newly qualified, that-, it can be quite daunting to navigate the case law in that way. So, I suppose, my main thing would be don't be scared of the case law, particularly for new and incoming professionals into this area, is don't be scared of the case law because the case law is actually there to help you do your job better.

Luciann: We've included the discussion points from our conversation today to reflect your questions and the links to our case law and legal summaries for adults and children and families to the webpage. We aim to release summaries on a monthly basis if there are useful cases to highlight with key learning. Don't forget that case law and legal summaries can be a good way to support your continuing professional development, meeting your Social Work England CPD standard for and relating to keeping practice up to date. Case law and legal summaries can also support peer reflection, for example, you can discuss a recent judgement with a colleague and reflect on the way it will impact your practice or bring a legal summary to a team meeting for discussion and this can be recorded as peer reflection. We hope this resource will support you in your practice and further develop your knowledge and skills around case law. Thank you for listening.  

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