Scene: Abu Qatada’s sixth birthday

Let’s suppose that little Abu was born on the 17th of April. Clear enough?

Little Abu jumps excitedly on bed and wakes mum up: “Mum, I’m six now“.

Mrs Q, reflectively, “About now six years ago I was just packing to go to hospital. You weren’t born for another 11 hours, son!

Applying this, we know that six years from his birth expired at the same time of day on the same day of the month,six years later. i.e. on 17th April. 1-0 to Qatada.

But we equally know that most people would accept little Abu’s claim that he was six all day on the 17th. The deadline that marks the start of his birthday actually comes less than six years after his birth. Strictly speaking, at midnight on 16th. Qatada 1 – Home Office 1.

Precocious Abu: “I’m in my seventh year now, aren’t I, Mum?

Mrs Q, reflectively, “That’s right. Yesterday was the last day of your sixth year. Today is the first day of your seventh year.” (like, 1st January is the first day of a new year, not the last day of an old one)

Applying this, we know that if we had to do something before little Abu was six, then the last day to do it was 16th, not 17th. 2-1 to the Home Office.

Little Abu at bedtime, sad: “You said you’d get me a cake for my birthday, and you haven’t!

Mrs Q, guiltily, “I’ll just go to the open-all-hours shop, it’s still not too late!

We understand that if we do something at any point on the last day to do it, we’re in time. It’s still his birthday until midnight on 17th. Qatada 2 – Home Office 2.

We are also beginning to understand the lawyer’s nightmare. Does something need to be done within six years, or by his birthday? What are we going to do with part days? Who are we advising? Are we advising little Abu whether it’s safe to tell his friends he is six, or advising Mrs Q whether it is too late to buy a birthday cake?

Mr Q, arriving home to find little Abu already asleep: “I’ve got his new bicycle in the boot for his present as I promised.”

Mrs Q, annoyed: “I couldn’t keep him up any longer, why did you leave it so late?”

Mr Q, defensive: “I said I’d do it today and I have, shall we wake him up?

Mrs Q: “Give it him in the morning, it’ll be alright, he won’t turn it down because it’s a day late…

For a more sound legal analysis of calculating time limits in the case of Abu Qatada, go here:
Abu Qatada and the law of time

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Is there really ‘Crisis’ in Care?

There seems to be a general understanding that the state of social care – particularly in relation to older people – is in crisis. You can look at the headline in the Independent today with their exclusive about a ‘Crisis in the care of elderly as £1 billion cuts bite’ .

I wonder about the use of the word ‘crisis’ though. There is a massive issue in relation to funding but this is not something that has been ‘magicked’ out of the air. Nor is it an issue which has suddenly arrived with this government. We have known about the needs of an ageing population for decades but each government of all parties have continued to try and ignore the fact that there will need to be a higher level of tax receipts or co-payment to meet the needs of people who require support from the state.

If it is a crisis, then it is a crisis created by lack of foresight both politically and economically – it is not a crisis created by the care sector or people who require care.

The Independent article is useful and interesting. It lists a number of cuts in services but also highlights a push into ‘reablement’ services which focus on higher intensity, shorter term care and support ‘packages’ to offset (so the idea goes) longer term care needs in the future.  It is, of course, vital to emphasis early interventions and preventative work however as the criteria for access to services initially rises, those who need care are coming to these services generally ‘later’.  It’s a useful foil to this Telegraph article a few days ago which talks of the numbers of older people who don’t have access anymore to care provided by adult services locally due to changing eligibility criteria.  It’s very important to remember that this system of reducing care to shorter visits by contracted large agencies who deliver poor support by minimum wage workers (some of whom are fantastic but not because the system does anything to actually help them) was created by the push towards contracting out and attempts by local authorities to barter for the cheapest delivery contracts without quality being considered.  This is where the NHS will go and it will be the people who are least empowered to complain who will receive the poorest service. This is not an unforeseen crisis. The roots were planted in the 1990s.

Meanwhile, remember Paul Burstow saying about there not being a crisis in care funding. The word is used to create political capital and blame. No more.

I’d argue there isn’t a crisis in care. There is a well foreseen and ignored gap in the funding and provisioning of needs in the sector. This isn’t a surprise to anyone who has an ounce of common sense. It does need action, just as it needed immediate action 5 years ago, 10 years ago and small half-hearted measures were taken without there being a fundamental reorganisation of the adult care sector.

Yes, we have had the move towards personalisation but it should have been accompanied at the time with a move towards changing in the funding systems. Having the ‘postcode lottery’ and care associated with local authority delivery in an era where people are increasingly mobile makes no sense. We are pinning an approach and delivery mechanism from a different era which should have been re-designed from bottom up to account for different needs in relation to geographical mobility and differing family dynamics.

Perhaps that chance has been lost, perhaps there will be some innovation in this field and more than tinkering around the edges and a resolution of ‘who will pay’ which seems to be the fundamental discussion at the moment.

I’d like to move the discussion further not just about how we pay but what we pay for and how these services are delivered. The ethos behind ‘personalisation’ was to transform delivery of services and it has to an extent but we need to  really embed this ethos for it to work properly and redesign the methods of assessment that feel like a ‘points for cash’ type system where people have to constantly write and discuss things they can’t do and have money and funds assigned accordingly rather than look at models that can build on strengths and abilities, which don’t discriminate on the basis of age or mental capacity or rely on family without providing safeguards where no family exists.

This isn’t a crisis in care. This is culmination of forecasts which have been long made and which have never been addressed.

Of course this needs to be tackled but lets lay the blame on those who we elect to represent us rather than those who have the needs that are no longer being met.

Rupert Murdoch and the Dying Croak of a T-Rex

This evening I had a damn good laugh after glancing at Rupert Murdoch’s Twitter, apparently set up in the wake of Hackgate to help him engage with new media.

So, how’s that going? Today, the Destroyer Of All That Is Good and Holy tweeted.

Tweeters who don’t like particular newspapers don’t have to buy them. Thousands of crappy blogs available.

MWAHAHAHAHAH!!!!!!!!!!

Personally, I’m actually rather fond of “crappy blogs”, as Murdoch calls them. I like the idea of journalism and punditry becoming something that’s done as an act of citizenship rather than as a paid job. It strikes me as something that can be a tremendous force for good.

A few years back I set up the This Week in Mentalists round-ups to highlight good blogging on mental health issues, which became a collaborative, online endeavour by a collective of volunteers. Just a few months ago, I reviewed the New Media entries in the Mind Media Awards. In the running was an interactive site to promote men’s mental health, a video diary of a girl with trichotillomania, and the winning entry, the outstanding Confessions of a Serial Insomniac blog, the author of which was kind enough to invite me along to see her pick up her prize. I was impressed by just how much can be done to exchange ideas and information, and none of it behind a paywall.

While it’s true that blogging, vlogging and tweeting can be a bit of a free-for-all, there are numerous gems to be found, on innumerable subjects. They’ve also become increasingly a force for accountability and exposing all kinds of naughtiness. Not least in the way that Twitter users brought down the News of the World. No wonder Murdoch’s feeling uncharitable towards bloggers and tweeters.

Murdoch is basically a weak, dying T-Rex, robbed of his dominant position by the asteroid smash of new media. As with the passing of the dinosaurs, the fall from power of media dinosaurs is leading to an explosion of new, evolving forms. Keep your obsolete newspapers, Mr Murdoch. Vive la (r)evolution.

The Queen should die! Truth and Justice in the Family Courts

In Book 19 of Thomas Malory’s Le Morte d’Arthur, Queen Guinevere is accused by Sir Meliagrance of high treason through infidelity with Sir Launcelot.

I thought that was a good opening line for a blog about truth and justice in the family courts! What actually inspired this were the reflections here of @suesspiciousmin on whether family justice is adversarial or inquisitorial. In particular, the gauntlet was thrown down (an appropriate mediaeval metaphor), “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”, which led me to this classic account of adversarial justice.

To get to the bottom of this matter, the Queen has a champion who will fight to the death for her. Sir Meliagrance is somewhat surprised that this is Sir Launcelot himself (the Queen’s lover, so professional misconduct and a conflict of interests, but there we go), and at one point the King intervenes to give the go ahead to measures to make the adversarial joust fairer: Sir Launcelot is to be partially unarmed, and fight with one hand tied behind his back. He still wins, Sir Meliagrance is beheaded, and the Queen is vidicated until another day.

This is classic adversarial justice. The two opposing arguments are championed by an advocate, they fight to the death, the King looks on dispassionately, makes sure the fight is fair, and in due course declares the winner to have been vindicated.

As that reputable legal source Wikipedia would have it,

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense.

Never mind that the Queen had committed high treason by a lifetime’s affair with Launcelot. The aim of this joust is to be fair, not to establish the truth. Indeed, if truth be told, I can now reveal King Arthur spent his reign going out of his way not to discover the truth about his wife and his best friend. He feared, correctly, that the truth would undermine his vision of a fairer society embodied in the round table; and his hold on his kingdom. It is why this tragedy is called the Death, and not the Life, of Arthur.

But we have now established two important points about adversarial justice, that held true in mythical mediaeval England, and still hold true today.

Justice is not necessarily seeking truth

The first is that justice is not necessarily seeking truth. When I first realised this, it startled me, but it is a fact I have grown more accustomed to over the years. There are many reasons, as Arthur discovered, for not seeking truth. In criminal law, if you reflect on the rule against self-incrimination (the bit that leads the Agatha Christie suspect to say, “aah, but you can’t prove any of this…”) you will realise this is about a notion of justice, rather than truth.

What about the threshold, “beyond reasonable doubt”? On reflection you will realise that means that some people who are more probably than not guilty must be acquitted. Because we have decided that it is a worse injustice for an innocent person to be convicted than for a guilty person to be acquitted. So our notion of justice creates a system in which getting to the truth is not central.

This very day, the BBC has reported that, “Lawyers claim new policy causes miscarriages of justice“. a story based on people being required to plead guilty or not guilty before they have seen the case against them. The idea that you should know how good or bad a case your opponent has built up against you, before deciding how to answer the question whether you did it or not, is based on our notion of justice, not of truth.

I am not saying that our notions of justice are wrong. There are sound reasons for them. Listen to people justfying torture as a means of extracting information, and you may prefer justice to truth. Consider how vulnerable people can readily make false confessions of what they didn’t do, and you may be glad about rules against self-incrimination. Consider those occasions when juries have acquitted not so much because they believe in innocence but because they do not believe that the punishment fits the crime. If you take the same view, you may think this was justice (let’s just assume this happened in history – when we had the death penalty, for example – rather than that it happens today…)

What I am saying is that justice is not necessarily seeking truth, though an inquiry into truth is more a characteristic of inquisitorial than adversarial justice.

An inquiry into truth is not necessarily co-operative

The second lesson is that the true distinction between adversarial and inquisitorial justice is not that the former is confrontational and the latter is co-operative; but that inquisitorial justice is more active in its inquiry into truth. In many inquisitorial tribunals, the tribunal can itself take the lead in the process of extracting the evidence and inquiring into truth. And inquisitorial justice can be every bit as confrontational (or, as we might say, adversarial).

We don’t need to imagine what might have happened if the truth about the Queen’s infidelity came out, because it happened shortly afterwards. The Queen was sentenced to death; Launcelot stepped in again; there was open warfare between Launcelot’s and the King’s factions; the King’s illegitimate son Mordred meanwhile stepped in to seize the throne – and marry Guinevere; which results ultimately in the King and Mordred killing each other on the battlefield as the dream dies…

An inquiry into truth is not necessarily co-operative. Facing up to the truth can, as Arthur discovered, be every bit as confrontational and adversarial, as we see our dreams lie in tatters.

It is a trusim that the family courts are supposed to have an inquisitorial system  – albeit one questioned in the blog which prompted these reflections. It is certainly true that there are real questions about whether the inherent confrontation helps or impedes the inquiry. It was encouraging to be able to report just yesterday on a case in which a High Court judge adopted something more akin to Alternative Dispute Resolution in a public law child care case.

We only need to see the heat that is generated by the conflict inherent in the current system to know that something needs to change (see, for example, this blog from Pink Tape @familoo). Before we decide exactly what needs to change, we need to answer some fundamental questions:

What are the principles of justice that matter more than truth in the family courts? And how can we maximise co-operation rather than confrontation in bringing about that justice?

These are questions that suesspiciousminds attempts to answer.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

What is Choice?

Lansley and Burstow and those in the Department of Health have extolled choice as an aim to strive towards in both health and social care. ‘Choice and Control’ was used as the key phrase as the agenda moved in Adult Social Care and it has been picked up as the NHS and Social Care Bill made it’s way through Parliament. After all, who doesn’t want choice? Who doesn’t want control? The answer is that not everyone is has the capacity or desire to make a number of choices in critical situations . It worked to an extent in social care in so far as those who are able and willing to choose or those who are well equipped with better funding and family advocates are able to choose.  However we have also seen the policy struggle behind in promoting true choice or in fact, any choice to those who are not as able to pick up the mantle themselves nor who have informal social networks to assist in this respect.

Does having ‘choice’ mean seizing control? Are choice and control two parts of the same coin? Does one lead to the other? Perhaps. My concern is with those who are either unable through issues of capacity or illness or unwilling (because – you know – sometimes that’s a real choice to be made too) to actively ‘choose’ the type of care they receive or the way the care is divided into a support plan.

Where we see the ‘managed’ local authority support plans, we see little ‘choice’ and no control. We see the same large agencies with block contracts tied into providing the same packages of care on the same terms that they always did. The promises of more flexibility have evaporated into the ether of local government spending cuts.

I’m not against ‘choice’  but I’m completely against false choice. I’m against the meaning of the word ‘choice’ being warped into something that makes good political capital for the government with no meaning when ‘choice’ has not been extended in any real terms. I’m against lazy use of the word ‘choice’. The government (and that’s the last government as much as this one) seem remarkably fond of it. Funny, that.

I urge anyone who hasn’t read Max Pemberton’s piece in the Telegraph a couple of days ago to take some time to read it. He writes about contract won by Virgin Healthcare to run services in Surrey.  He explains this notion of ‘choice’

. The emphasis on choice was something that was repeated ad nauseam by ministers in an attempt to sugar the bitterest aspects of the Bill. The legislation would provide choice, we were assured. Everyone likes choice, don’t they? And we all nodded in innocent agreement.

I have argued before that in a healthcare setting, choice is a misnomer: all hospitals should provide an excellent level of care because so many people – the old, the infirm – are unable to exercise choice because of geographical or physical limitations. But only now that we can see the shape of the NHS Bill can we truly assess what choice actually means.

And this is the reality as it exists more starkly in health care than in social care.

I chose my local hospital for treatment because it was the only one I could reach within an hour by public transport. The people who live where I live will be making similar ‘choices’. Those with access to cars may make other choices and go to ‘better’ hospitals further away (although I have to emphasis my treatment was great at the local hospital even though it’s ‘ratings’ and ‘feedback’ are poor!). Those who can only access public transport will have less choice.

Similarly, my GP is on the same road as me. I have had gripes. Do I go to another? No, because when I’m sick, I want the nearest surgery. I don’t have time to research the different specialisms and natures of the GPs around me. This would be even more notable if I were in a rural area.

So who is this ‘choice’ for? For the class of people that the politicians pander to. Those who have the means and ability to choose? How can we truly make choice genuine and meaningful in systems which inherently try to blind themselves to the different cultures. attitudes and natures which do discriminate in the way access to choice is made.

Perhaps this is a way to increase equitable services and access to services across health and social care. I have long believed that advocacy may be a solution. Sometimes I walk away from work and realise that the people that I spend time with on a day to day basis are not the people that politicians either speak for or to. That’s why, as a social worker, it’s important for me to remind and nip away at these groups of people who won’t be clamouring for their pens (real or virtual) to engage elected members.

We have left behind a whole swathe of people who have not been able to ‘choose’ are a part of the personalisation agenda. We must push on and the voices will grow louder as others see this happening in healthcare.

Choice is a luxury of the more able. Good universal services for everyone must be the essential bedrock.

The NHS and Social Care Act has passed, but the voices must increase. We who can choose much speak for those who cannot.

Violence begins when democracy ends

As Easter is meant to represent for many of us, new beginnings, a reflection upon the recent past seems appropriate and the evidence of increasing violence both at home and abroad cannot be ignored. Over the last year we have had war, riots, random gun attacks and filicide (the killing of one’s own children and then taking own life) frequenting the news bulletins to the point that we are almost in danger of becoming immune to such devastating news. Torture and discrimination are also frequent visitors as they uncover a response to the failure of democracy within a striving to be compassionate society.

Democracy is what we all hope to live by in demonstrating a tolerant attitude to the many different values and beliefs within a society that needs a certain amount of rules for it to be successful.  Politics aim to ‘police’ and develop such rules in the laws of the land and the taxes that they generate. When democracy fails therefore politics also fail and this is demonstrated across the world and in each and every household as the gruesome act of violence.  The fact that we accept violence to be part of our everyday lives is sanctioned in the violent films and crime programmes fictitious or real that we absorb through media every day. We allow our children to ‘play’ at being violent and we encourage them to learn self-defence as a part of self-preservation. Many child psychologists will tell us that play is nature’s way of preparing us for the real world and therefore should be taken very seriously in a child’s development.

The recent publicity around our returning fallen war heroes and the celebration of their successful often returning visits to places like Afghanistan reminds us to reflect upon the costs of violence to every family, widow, child in our local community and beyond. For if democracy continues to fail can we really blame the few for fighting against the rules of an unjust society, or do we just need to change the rules?

Andrew Lansley Definition Competition

A few days ago I jokingly ended a post about our beloved Health Secretary with the words, “What a complete and utter Lansley.” Bristol Michael commented on this,

Could there be a competition to define a ‘Lansley’? The usual packet of Jaffa Cakes on offer as a prize.

That sounds like a gauntlet being thrown down. Some of you may remember the American comedian Dan Savage previously held an online competition to define the word ‘Santorum’ in resonse to Republican presidential candidate Rick Santorum’s homophobia. If you choose to find out the winner by googling the word ‘Santorum’, I recommend you don’t do it from a work computer.

Leave your suggestions in the comments boxes, and vote on the suggestions you like by clicking on the thumbs-up icon. As this blog is used by professionals, please make your entries work-safe.