Thursday, 1 November 2012

A Non-Adversarial Approach To Resolving Social Care Disputes

Vic Citarella of CPEA Ltd and Helen O’Brien of the Centre for Justice propose a non-adversarial approach to resolving social care disputes

This is to let readers know about Centre for Justice, an independent not for profit arbitration service developed for the public sector. The service has been created in response to the growing cost of local government disputes and conflict management, the need to save public money and as a way to improve services.

As we all know, going to court or tribunal is a costly business for councils. The process is damaging to staff morale, the council’s reputation and the client relationships which people work so hard to develop. Courts and tribunals are acknowledged to be slow, risky and expensive. These and complaints procedures can inflame a sense of grievance and cause positions to become deeply entrenched.

CPEA Ltd is exploring the Centre for Justice’s non-adversarial approach to dispute resolution. The model uses a simple process with one specialist lawyer who works with the parties to investigate the problem. This reduces the cost to a fraction of that of going to court or tribunal. The arbitrator offers to mediate between parties at each stage to find a constructive solution. Centre for Justice provides a legally binding result in every dispute. It also enables most disputes to be concluded with positive outcomes through discussion and agreement.

The Centre has been speaking to Heads of Legal Services from London Boroughs and many have mentioned social care disputes over personalised packages and direct payments. Conversations with charities also indicate support for processes which reduce the time and stress involved in going to court or tribunal, and which provide a less intimidating forum for discussing sensitive issues with the local authority.

The primary aim is to save money and time spent preparing for costly tribunals, Judicial Reviews and contract disputes. We believe this time should be devoted to providing essential services to children, families and adults.

The case involving Stephen Neary that came before the courts last year is a good example of how a non-adversarial process could have saved both time and money. The Council involved spent more than a year defending its decision to keep Neary in care.

A judge later overturned that decision, saying the care was neither wanted nor needed. If these decisions go to court, on judicial review or otherwise, it results in a great deal of legal cost and staff time. Not only can this generate considerable stress and hostility, but it can still leave both parties in limbo. While a judge can quash the original decision, this still provides no solution and can force the case back to the start.

If the case goes instead to Centre for Justice, a specialist arbitrator helps Council and client agree the right outcome. The arbitrator advises on the legal issues and decides these where necessary. This enables the local authority and client to find positive solutions for the most intractable and emotive issues.

CPEA Ltd is supporting the Centre is ensuring its work has the best social care practice and professional back-up to its work. Contact: info@centreforjustice.org or info@cpea.co.uk Website: www.centreforjustice.org or www.cpea.co.uk

4 comments:

  1. Hello there,

    Could I just sound a note of caution about arbitration for disputes under the DOLS? I've discussed this at more length on my blog, so I won't go into too much detail, but I'm very, very troubled that the Centre for Justice are still promoting arbitration as a possible alternative to court for DOLS disputes. The requirements of Article 5 ECHR are very, very clear: a person has an absolute right to challenge their detention *in a court*, and the court must have the power to pronounce whether or not their detention is/was lawful, to discharge them from detention, and to award them compensation.

    To see how arbitration is problematic, imagine a scenario (like Neary) where both P (the detainee) and R (his Part 10 representative under the DoLS) are objecting to his detention. The first question is - who goes to arbitration? Arbitration rests on the assumption that a person has capacity to enter into an arbitration agreement. Clearly, this is a really problematic assumption for a person who is detained under the DOLS. Indeed, this is a problematic assumption for any person who wishes to challenge a 'best interests' decision made under the MCA about them. So let's assume that P can't take part in the arbitration. What then?

    Let's say the representative and the council enter into an arbitration agreement, and let's suppose the outcome is that the arbitrator feels that P has been lawfully detained under the DOLS. Has this resolved the dispute? Not at all. P still has an *absolute* right to challenge his detention in court. Nobody, including his representative, has any right to "arbitrate away" this right. Meanwhile, the state still has a duty to assist P in exercising this right (see the final paragraph of the Neary ruling). So P can still go to court if he objects, and the council *must* assist him in doing so. So the arbitration has been a pointless exercise, becasue the dispute isn't resolved in any meaningful way. It could, potentially, also lead to delays in P exercising his Article 5(4) rights. And it could potentially lead to the problematic situation where everybody believes the dispute is resolved, whilst P's Article 5 rights have been trampled all over.

    I've discussed this problem at lenth with the C4J previously:

    http://thesmallplaces.blogspot.co.uk/2012/02/could-arbitration-be-used-for-dispute.html

    I am very, very bothered by the fact they are still giving the Neary case as an example of what arbitration could achieve. It suggests to me that they neither understand issues of capacity or Article 5, and I'd recommend that you look into this problem further.

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    Replies
    1. Thanks Lucy

      You are probably right that the Neary case may not be the best example for the CfJ method and approach. When we meet with them in January we can raise your concerns.

      Our primary interest with the CfJ approach to ADR is in respect of social care provider contractual disputes, fees disputes, some safeguarding issues and CQC improvement requirements that are heading for enforcement. Rather than a call to legal arms we think there are alternatives.

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    2. Sorry to sound a downer about it. I think arbitration could be really useful for contractual disputes where all parties have capacity and are on an even footing, so CQC/provider, commissioner/provider, disputes would be very amenable to arbitration (they are basically commercial/contractual disputes, which is what arbitration is usually used for).

      I've contacted the Law Society suggesting they provide better guidance on what kinds of dispute arbitration is suitable for. Safeguarding issues I'd still feel pretty queasy about, as they so often engage issues around incapacity or undue influence which arbitration is not well equipped to manage. Mediation, on the other hand, can be really useful - but the problem with arbitration is it seems to prevent the case going to court if it needs to. I'm just not sure you can do that for welfare jurisdictions premised on a person's incapacity or impaired decision making (ie. the inherent jurisdiction). How can you oust the jurisdiction of the court to decide on capacity and best interests? Arbitration wouldn't seem to give you any legally certain outcome, and yet that's meant to be its main attraction (unlike mediation, which is about non-binding dispute resolution). By analogy, family law arbitrators don't touch child welfare issues:

      http://www.familylawweek.co.uk/site.aspx?i=ed90447

      There are a whole load of debates about whether arbitration in family law would even be binding and upheld by a court:

      http://www.familylawweek.co.uk/site.aspx?i=ed95952

      I think it's quite possible similar considerations would hold for capacity issues and the inherent jurisdiction.

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    3. Thanks Lucy

      We are meeting with colleagues from the Centre for Justice in the New Year and will be looking at some case study examples. One of the purposes is to understand their approach to both arbitration and mediation and how our specialist expertise can support the process.



      As I said we are particularly interested in issues of contract and also in employment disputes. It is where safeguarding issues lead into contractual disputes and suspensions of both contract for service and/or of employment where we have been asked to get involved – for example

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