Both parties are helped to reach their own resolution through mediation but, where this does not result in agreement, the assessor goes on to make an award (binding under the Arbitration Act). This results in a prompt, cost-effective, legally binding agreement or award in every case, benefiting local authorities and those they care for. Time and cost savings are considerable, — around 80% on legal costs alone.
Use of the service such as this would have spared Hillingdon the heavy legal bills it faced and quickly ensured the council and the Nearys the right result. Reputations and dignity would have been left intact, distress minimised and relationships preserved.
…a formal process in which an impartial third party with specialist background knowledge on the nature of your dispute hears all parties and makes a binding decision to resolve it.
There has been a widespread belief among family lawyers that arbitration cannot apply in family law disputes. This is a misconception. There is nothing in the Act or otherwise to preclude arbitration in family law matters. However, there has not until now been any scheme setting out rules within which family law arbitration could take place. For practical purposes this had ruled it out.
- The liberty of individuals
- The status of individuals or of their relationship
- The care or parenting of children
- Bankruptcy or insolvency
- Any person or organisation which is not a party to the arbitration.
‘The tribunal may make a declaration as to any matter to be determined in the proceedings.’ (Arbitration Act 1996 48(3))
‘The tribunal has the same powers as the court—(a)to order a party to do or refrain from doing anything;’ (Arbitration Act 1996 48(5)(a))
- Can taking a dispute to an arbitral tribunal discharge a public authority’s positive obligation under Article 5(4) to enable a detainee to have the the lawfulness of their detention reviewed speedily by a court? If not, then there seems to me little point in referring a dispute like Neary to a tribunal, as the public authorities could still be found to have failed to enable the detainee’s Article 5(4) rights.
- If a dispute over detention has been referred to an arbitral tribunal, and settled such that the detainee remains detained, does this mean they have ‘used up’ their right of review of detention by a court? And more importantly, can they still appeal against their detention under s21A MCA, or must they now appeal under the Arbitration Act 1996 against the arbitration award? If, following arbitration, they can no longer appeal under s21A MCA then that strikes me as a major disincentive to use arbitration as detainees would lose their ‘gold plated legal aid’. In the alternative, if they can continue to appeal under s21A MCA, whatever the outcome of arbitration, then there seems to me to be little incentive for a public authority to use arbitration as it would offer them little legal certainty.
- Is there any legal reason to believe that issues of the welfare of incapacitated adults and liberty should not be decided by arbitration proceedings?
- How could P participate in proceedings, and be bound by the award, if he lacks the capacity to consent to the arbitration agreement?
- What sources of funding would be used for arbitration?
- If the detained party was unhappy with the outcome, would he then be precluded from appealing against detention under s21A MCA?
- What would the qualifications and expertise of the arbitrator be in relation to DoLS?
- Would the parties still use a) solicitors, and b) counsel, to guide them?
- How much, typically, does arbitration cost?
- Would arbitration proceedings satisfy the positive obligation under Article 5(4) that incapacitated detainees must be enabled to appeal against their detention in court?
If readers have experience in using arbitration for MCA disputes, or you could respond to one of more of these points, then please feel free to use the comments section below or email me (firstname.lastname@example.org) if you would like to write a guest post.
Response from Anthony Hurndall, Centre for Justice
In this very well researched and thorough analysis of the issues concerning Deprivation of Liberty Safeguards Lucy Series raises a number of questions. We will deal with these briefly.
Arbitration can generally be undertaken by any two or more parties to decide any question that might be put to a civil court or tribunal to be decided between those parties. It cannot bind third parties, indeed as one would expect, and it cannot deal with non-civil matters, e.g., issues only a criminal court can decide. It cannot be used in public law functions, e.g., to decide whether a planning consent should be issued, though it can deal with whether that decision was properly arrived at, as one would through judicial review.
The concept of arbitration is that it is a process the parties agree to instead of going to court. Once they have agreed this, the court is precluded from deciding the issues. The fact that an individual has the right to go to court is the starting point from which the parties depart by agreeing they will instead refer the matter to arbitration.
In DoLS questions under the Mental Capacity Act, the issue is whether the individual’s representative has authority to make a decision or enter into arrangements on behalf of that individual. If the representative has that authority, which can be obtained under the MCA, then that is enough. All parties are then bound. We are currently dealing with a similar case concerning consent on behalf of parties represented by their parents, though not a DoLS matter and one of the question that arises is whether they have obtained authority.
We accordingly see no reason why the issue between local authority and individual should not be dealt with in this way.
Our process is different from conventional arbitration, indeed we do not call it arbitration, thought it takes its authority from the Arbitration Act. Its key is that it is non-adversarial. It is fully inquisitorial, as the assessor deals with the parties direct. It is the assessor’s role to investigate and decide the issues him/herself and not to hear argument or evidence, so levelling the playing field. The parties do not need lawyers as they would in an adversarial process as the assessor’s duty is to safeguard the interests of both parties by fully investigating and ensuring the correct legal analysis and outcome. Indeed we consider there is less equality of arms in the courts or arbitration, as there all depends on the relative resources of the parties and the skills of their representatives. Here there is true equality as the assessor is working for both parties to get them the correct result. Of course, it is an onerous role and requires specialist knowledge and considerable expertise, and it is Centre for Justice’s function to provide this.
There is a cost but to date this is less than 10% of the cost of going to court. Our process includes mediation which is covered by legal aid and we are looking into securing legal aid for the arbitration. We do offer means weighting for cases where the local authority agree this. As the savings to them are enormous, they are often happy to do so, so cost should not normally be a restriction on the use of the service.
In most of these cases speed is of the essence and our process delivers an outcome in a fraction of the time of cases involving the courts and judicial review. As we encourage the parties to mediate within the process, they are also able to agree and ‘own’ the outcome, which is far more satisfactory and allows relationships to be maintained and repaired. It also delivers even quicker results.
In brief, so long as the representative of the individual has obtained authority to represent him/her, the representative can bind the individual and the local authority. This is an alternative, and a binding alternative, to going to court, on all the issues, and an effective and far preferable one.
A objected to this continued deprivation of his liberty and his objection was passed to the Relevant Person’s Representative (RPR), who, at that point, was S. However, S did not support A in exercising his right to challenge the authorisation, with the result that a different RPR was appointed.