What does a Mental Health Social Worker do?

I think there’s a lot of misunderstandings about what I actually do at work. What do social workers who are in mental health services do? What do social workers who work in adult services do?

I hope by reading, some people get to learn a little of my day to day role but I also thought it might be useful to set it out more explicitly.

I’ve worked in adult services and I’ve worked, as I do now, in mental health services but I’ve never worked in childrens’ services so I can’t comment at all about the work that is done there. This is my attempt, not to explain social work as a whole, but to explain the bit of social work that I’m familiar with.

I work in a multidisciplinary Community Mental Health Team. We have a consultant psychiatrist attached to the team as well as a few (the amount fluctuates!) other doctors. We have occupational therapists, clinical psychologists, assistant psychologists, community psychiatric nurses and of course, social workers. We always seem to have students around, whether psychology trainees, OT students, nursing students or social work students (and even some medical students pop in occasionally).  I sit opposite a psychologist and between an OT and a nurse.

Although no week is typical, I’ll give a few examples both of the generic role and the way that social work fits into a mental health setting, in England, at least (because I’m not sure if there are differences in Scotland, Wales and Northern Ireland).

Work is allocated for ‘care co-ordination’. Care co-ordination is akin to what we would have called ‘care management’ in Adult Services although there are some differences and responsibilities under the Care Programme Approach.  It basically means we take responsibility as a kind of ‘key worker’ for individuals who are ‘taken on’ by our service.

Allocation should be done on the basis of appropriate professional expertise so for some issues that have a more ‘social work’ tilt about dynamics, organising personal budgets or residential placements might be preferred as allocated to social workers, some that are more rehabilitation orientated might be allocated to an Occupational Therapist and more medical or medication management might be allocated to a CPN but that is a very broad brush to paint and in practice – most people are a mixture of all the different needs and so are allocated generically. If I have need a of specific OT assessment for one of the people that I am care coordinating, I will ask one of our OTs and similarly, I care coordinate one person who receives a monthly depot injection from one of my nursing colleagues.

So what is care coordination/care management about? Well, we start by working with and on a care plan and this should be led by the user of the service. If there is a carer involved it would also involve them and we put together plans. In my service which works predominantly with older adults, there may well be care services needed and this is now all delivered through personal budgets so I would take someone through the supported self assessment questionnaire, the resource allocation system and develop with them and/or their carers, depending on capacity issues on a support plan and way that services would be delivered. This would be reviewed and implemented in partnership.

I will also arrange respite placements  and services when they are needed and review services as they are delivered.

Alongside this, I would also be responsible for monitoring any changes in mental state and might provide some brief therapeutic interventions mainly through basic CBT type models according to additional training which has been given in the NHS Trust I work in as they are trying to ‘skill up’ all care coordinators!  When I meet with someone, my discussion ranges for more broadly than about their care needs specifically. Sometimes it is about sourcing and finding ideas, services and people that might be able to help, namely through group work which is run across the service or through referrals to specific psychologists attached to the team. Sometimes it is much more difficulty to quantify – and log – and record.

I work with carers and work through carers’ assessments and services such as they are. Often I feel one of the most important aspects of my work is carer support as we rely so heavily on some carers. I might liaise with different organisations on peoples’ behalf if they can’t manage or need some assistance. Sometimes I help with Attendance Allowance or Disability Living Allowance claims but there are council teams that do that so it would only be in circumstances when I might know someone particularly well and be concerned that someone who doesn’t know them that well might ‘underplay’ some of their needs.

Sometimes it is about liaising with creditors, gas and electricity companies, housing etc with various degrees of success. I like to think of myself as an advocate at times.

Although at times, I am very far from an advocate. I am subject to specific ‘terms of reference’ of my job and have no control over things like budgets that can be assigned to various people with various needs. I would ‘present’ the needs of service users I work with to various internal funding panels so on that basis I need to advocate clearly.

We have to review the services that are in place regularly. I would attend meetings at day hospitals and on wards when I am allocated to people who currently attend or are inpatients.

I work to plan and organise discharges from hospitals both the psychiatric hospitals and the general hospitals when people whom I am allocated to are inpatients. There are some very obvious time limitations on these pieces of work and no-one wants anyone to be in hospital any longer than they have to – but equally no-one wants someone to be discharged from hospital before they are well enough to be – which is another very important consideration.

I conduct safeguarding investigations as well. Alerts come up with what can be surprising frequency and there are prescribed procedures through which we approach these investigations. It’s hard to generalise as they can be very different. Interestingly most of my recent ones have involved residential services in some way or another. I think I’ll come back to the process of investigating abuse in another post as it is altogether a subject in its own right. We tend to get more of these investigations in older adults services than occur in the working age adult services.

I am an Approved Mental Health Professional (AMHP). That means that I am on a rota to carry out Mental Health Act (MHA) Assessments . There is an important difference between a Mental Health Assessment which is a more generic term for an assessment of someone’s mental health and a specific ‘Mental Health Act Assessment’ which is a formal assessment under the 1983 Mental Health Act which can result in a compulsory admission to hospital without consent.

The role of the AMHP could be a post all of its own and it probably should be so I’ll condense here for clarity because it has increasingly become a part of my day to day role. I organise and arrange these assessments by arranging for ambulance service and doctors attendance (there have to be two medical recommendations written by doctors – one should know the patient (usually their own psychiatrist or GP along with an independent doctor who has had additional training). I also attend a magistrates’ court to obtain a warrant to enter if it is likely that we would not be allowed access to a property. I  arrange police support if necessary and would also organise a hospital bed if necessary.

There are legal forms to complete and I have an obligation to be mindful and respectful of legal rights and human rights when involved in these processes.  I am obliged to attend a specified amount of ‘legal updates’ every year to maintain my approval as an AMHP and every five years I have to be ‘reapproved’ which involved me taking a legal test and submitting some reflective pieces and examples of my work as well as carrying out a set number of assessments per year (no problem with the numbers – I’ve done the requisite annual number in the past week!).

I’m also a BIA (Best Interests Assessor). This means I have specific duties and responsibilities to carry out assessments under the ‘Deprivation of Liberty Safeguards’. Again, that probably demands a post or two of its own. Suffice to say that every so often I am called out to do a specific type of assessment on this basis.  I had to attend additional training to be able to do this and have to attend update workshops and training to retain my approval.

Apart from the things I’ve listed, my job involves other pieces of work. I write social circumstances reports for tribunals. I occasionally have been involved in assessments and writing reports for Guardianships and in taking part in the process of approving or extending a Community Treatment Orders. I frequently carry out Capacity Assessments for various reasons.

I’m a practice assessor too so when I have a student, well, I have a student to supervise. I tend to enjoy having students around. It does create more work though and there’s no recompense in terms of reduction of caseloads! And the universities and local authorities wonder why we can’t offer as many statutory placements!

My work is often one of juggling and trying to prioritise and reprioritise on the basis of risk management. What is more important for me to complete on any given day.

I haven’t even mentioned data input or writing case notes but takes a fair bit of time. We have regular audits of our ‘productivity’ – we have to input our ‘outcome measures’ and re-input them regularly so our management overlords accept that we are actually spending our time at work, working effectively and not just twiddling our thumbs and playing Facebook games.

The amount that we have to ‘report back’ is, of course, growing at an exponential rate.

So that is my job – as briefly as I could manage and I have missed out some of the million subtleties that might change on a day to day basis.

I generally enjoy it. I love the variety that is thrown my way on any given day. Some days it frustrates me and there are rarely enough hours in the day to get what I want done, done. This may explain some of my frustration with the bodies who all say they ‘speak for social work’.  Have they explained the role of social work outside child protection? Would you know, if you are not involved in the ‘system’ what a mental  health social worker actually does?

But really, that’s another fight for another day. For now, well, I need to go to work!

But I had over to you, dear reader. Is there anything that surprises you? What you expect? What have I left out – as I’m sure I have missed a lot of things!

Neary, Hillingdon and Best Interests Assessments

Logo of Hillingdon London Borough Council

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The judgement in the case of Stephen Neary was published yesterday. I  held off commenting about the case when it first hit the press because sometimes I feel there is a lack of detail and an overwhelming presence of misunderstanding in relation to reporting about the Court of Protection and the Deprivation of Liberty Safeguards (DoLs).

Now that the Court has made it’s decision and published it’s judgement, I feel a little better able to comment and assess.

I haven’t read the judgement in great detail and have no doubt that I’ll come back to this over the weekend  but I wanted to share and explore some of my initial thoughts about it.

Steven  Neary is a man who is autistic and who was living with his father, Mark,  in the London Borough of Hillingdon. He was receiving extensive support from the local adult services department. Steven was placed in respite care and the borough felt that it was in his best interests to remain at the support unit where he was receiving respite care although his father wanted him to return home. A number of deprivation of liberty orders were made for the period between April to December 2010, which enabled Hillingdon to keep Steven at the support unit (the council claimed that between January and April Steven’s father consented and/or he was not being ‘deprived of his liberty).

The Court found against the Council that Steven had been unlawfully detained by the council between January and December 2010 and had been deprived of his liberty for the entire time with the ‘authorisations’ that the council had granted themselves being deemed to be ‘invalid’.

The other points that the judgement picks up are that the first referral to an IMCA (Independent Mental Capacity Advocate) came in October 2010 and that the matter was only referred to the Court of Protection in October – both of which denied a speedier resolution to this period of detention for Steven.

There are some interesting and useful statements which are given in the judgement.

Firstly the judge condemns Hillingdon for using the DoLs to impose their decisions on the family which goes against the spirit of the Mental Capacity Act 2005 saying

The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met, it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in the place at all. Using the DOL regime in that way turns the spirit of the Mental Capacity Act 2005 on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case, far from being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home.

And both crucially and importantly for Supervisory Bodies (who are the PCTs and the Local Authorities) comes this guidance

The granting of DOL standard authorisations is a matter for the local authority in its role as a supervisory body. The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. Where, as here, a supervisory body grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.

So this places a consideration on the decision makers or ‘signatories’ at the supervisory bodies to do more than sign. My assumption, as a Best Interests Assessor was that the assessments I send to a Supervisory Body were actually discussed between ‘decision-makers’. Maybe I’m hopelessly naive but I always assumed my assessments were not automatically ‘signed off’.

One of the things I have picked out from the reading through the judgement is the lack of experience and understanding about the DoLs procedure that seemed to be widespread. The judgement explains

He (Mr Neary)then began a dialogue with the social worker about this, which was a learning experience for them both, as neither had any experience of the procedures

It’s a shame that there is so little experience of the procedures by professionals and it indicates (although perhaps I am reading too much into this sentence) the broader misunderstandings that are created by lack of knowledge of new processes.

Later the first Best Interests Assessment recommends

involving an Independent Mental Capacity Advocate (IMCA). The report recommended that four conditions be attached to the authorisation, among them: “(1) Consideration to be given to the most appropriate place in which to provide ongoing care to meet [Steven's] needs, (2) Consideration be given to referral to IMCA services to act as an independent advocate for [Steven].”

And of this first Best Interest Assessment, the judge says

The standard form used for the report specifically states: “You must consider whether any care or treatment the person needs can be provided effectively in a way that is less restrictive of their rights and freedom of action.” and makes reference to paragraph 4.61 of the DOL safeguards Code of Practice, which refers to the question of “what other care options there are which could avoid a deprivation of liberty”. It would not be right to be unduly critical of her report, particularly as it was the first DOL best interests assessment she had undertaken. She flagged up what became known during the hearing as “the elephant in the room”, which was whether Steven should be at the support unit at all. However, she did not follow up on this. She does not refer to the alternative of a return home as being an obviously less restrictive alternative. Nor does she refer to Steven’s unhappiness at being in the support unit. Nor did she propose an application to court as a condition of the authorisation.

For me, as a Best Interests Assessor these points are crucial in ensuring that least restrictive options remain at the forefront during my assessments.

Of the Second Best Interests Assessment, the judge is more scathing.

The judgement indicates that in June 2010 (as the first DoL was authorised for three months)

A different best interests assessor (BIA2) consulted Mr Neary . He describes her telephoning him at lunchtime for 10 minutes, saying that she had to file her report by 3 p.m.

It’s hardly a full and extensive discussion and for a standard authorisation of a Deprivation of Liberty there is a fairly generous time scale (21 days) allowed to complete assessments – it certainly shouldn’t need to be done in such haste.

In fact this is what the judge says about the report

I have not heard evidence from BIA2, but I have read her assessment. She recommends a three month period for deprivation of liberty. Substantial parts of her short report are cut and pasted from the previous best interests report. She appears to have had cursory contact with Steven on 21 June, the date her report was filed (even though it is unaccountably signed on 18 June). No reference is made to his wishes and feelings. No reference is made to Mr Neary ‘s opposition to the placement. On the contrary, the following appears: “I understand from my conversation with Mr M Neary  that he believes the current care plan is positively supporting his son and his transitional programme.” No reference is made to the possibility of a placement at home alleviating the need for a deprivation of liberty. The recommendation is made for two conditions to be attached, one of which suggests that the three outstanding risk assessments for Steven’s activities should be completed within eight weeks (in the context of a three-month deprivation recommendation). No reference is made to the absence of an IMCA, despite the condition in the previous standard authorisation, nor to the Court of Protection, despite the references in the previous assessment. I regret to say that the report has all the hallmarks of a document completed in a hurry.

Of the third authorisation, the judge notes

On 20 September, the third standard authorisation was granted by the Director for a period of two months. The authorisation makes no reference to Steven’s wishes or those of his father, nor to the possibility that deprivation of liberty would not be involved if he was at home. The purpose of the standard authorisation is described as being for Steven to receive a structured programme to contain his behaviour. Conditions were attached requiring risk assessments of all venues before Steven could undertake activities outside the unit. Consideration was to be given to an appropriate long-term placement.

The best interests assessment, by a third assessor, BIA3, refers to Mr Neary‘s disagreement with the placement and recommends recourse to the Court of Protection as a condition. BIA3 also noted that an IMCA had been requested.

These issues were addressed far too late. Steven returned home in December following a court order.

So where does this leave the DoLs process. I think some of the more useful parts of the judgement relate to an explanation of why Steven was being deprived of his liberty (in legal terms) and what amounts to a deprivation of liberty. We (Best Interests Assessors) have to rely on case law to help us pick together when a deprivation is occurring so it is useful to have further guidance.

The judge also states that the supervisory body should consider further the contents of the assessments it receives rather than just rubber-stamping them.

Although the framework of the Act requires the supervising body to commission a number of paper assessments before granting a standard authorisation, the best interests assessment is anything but a routine piece of paperwork. Properly viewed, it should be seen as a cornerstone of the protection that the DOL safeguards offer to people facing deprivation of liberty if they are to be effective as safeguards at all.

The corollary of this, in my view, is that the supervisory body that receives the best interests assessment must actively supervise the process by scrutinising the assessment with independence and with a degree of care that is appropriate to the seriousness of the decision and the circumstances of the individual case that are or should be known to it.

Paragraph 50 provides that a supervisory body must give a standard authorisation if all assessments are positive. This obligation must be read in the light of the overall scheme of the schedule, which cannot be to require the supervisory body to grant an authorisation where it is not or should not be satisfied that the best interests assessment is a thorough piece of work that adequately analyses the four necessary conditions.

I also rely on the obvious fact that the intention of paragraph 50 cannot be to require a supervisory body to give an authorisation simply because the best interests assessment makes a positive recommendation, whatever the quality of the work disclosed in the assessment. On behalf of Hillingdon, it was accepted for the sake of argument that it would not be bound by an assessment that was in effect so poor as to be “a joke”, so it follows that paragraph 50 cannot be read as if it simply required a positive answer without cogent reasoning. Hillingdon has however suggested that a supervisory body is bound to act upon any best interests assessment that is not grossly and obviously defective.

Against this, the EHRC and the Official Solicitor argue that where a supervisory body knows or ought to know that a best interests assessment is inadequate, it is not obliged to follow the recommendation. On the contrary it is obliged to take all necessary steps to remedy the inadequacy, and if necessary bring the deprivation of liberty to an end, including by conducting a review under Part 8 or by applying to the court. This is in my view a correct statement of the law. The suggestion that the supervisory body is bound to act on any assessment that is not grossly and obviously defective sets the standard too low. It supposes an essentially passive supervisory body. This would not meet the objectives of the Act and would not provide effective protection against breaches of Article 5.

The nature of this process for supervisory bodies is not likely to be very burdensome, given the relatively small number of cases, and if it were it would be fully warranted to ensure that the right outcomes are reached for people who are likely to be the most vulnerable service users. It should never be a rubberstamping process. A standard authorisation has the same effect as a court order and there is no reason why it should receive lesser scrutiny.

For me, this is one of the key points (and the reason I’ve quoted so much of the judgement text). It is likely to strike at the heart of the supervisory bodies and the way they authorise deprivation of liberty safeguards. And good, I say, they are senior managers and earn enough money to be able to take responsibility for the tough decisions that are in place ‘on the ground’.

The other issues that are raised regarding the lack of appeal process and the failure to appoint an IMCA and refer to the Court of Protection more speedily are also crucial in the judgement but for me as a Best Interests Assessor there are number of very useful reminders about the need to display independence in my role as an assessor and to advocate for myself in demanding the time in a working day to produce a good quality piece of work worthy of the difficult decisions that are to be made.

Mostly though, I just wish we had more open systems so that we can better understand the views and improve of knowledge regarding the expectations of what is an over-complicated and flawed system.

As a Best Interests Assessor (and an AMHP) I do not feel beholden to do what is best for my employer. In fact, sometimes I take an almost subversive amount of pride in taking a more independent view and opposing some management decisions by applying the law. However, I understand that I have a certain amount of confidence and bloody-mindedness in my approach.

Perhaps if any changes in the system are made (although I don’t think they will be) a further consideration of independence of the Best Interests Assessor will be considered. I have done Best Interests Assessments for my own borough and for other boroughs when I’ve been ‘loaned’ out and I genuinely feel it is less pressured and easier to be ‘independent’ when you are assessing from a ‘wider view’ of not being employed by that borough. Of course, I hope that I always remain independent but I think it would add a further element of scrutiny.

I have no doubt I’ll come back to this case and this judgement. There’s a lot to get through and many issues that I didn’t pick up on. It emphasises the importance of some of the decisions we make and the importance of being personally responsible for the reports I write as a professional.

And for anyone not following Stuart Sorensen’s series of posts about the European Convention on Human Rights on his blog – I’d highly recommend visiting, reading and learning. I have learnt much from them.

Winterbourne View – Where were the Deprivation of Liberty Safeguards?

One of the many things that have been concerning me since the Panorama programme about abuse within the Winterbourne View hospital for adults with learning disabilities was aired was the way that the safeguards implemented under the Mental Capacity Act were, or weren’t used.

Bearing in mind that a number of the patients/residents would have been formally detained under the Mental Health Act, that still leaves some that surely should/would/might have been subject to the Deprivation of Liberty Safeguards.

Law books 2

Eric E Johnson @ Flickr

On The Small Places, Lucy, in a fantastic post that breaks down a lot of the issues, writes on this matter stating

Undoubtedly everyone on that ward was deprived of their liberty, but were they detained under the provisions of the Mental Health Act, the Mental Capacity Act Deprivation of Liberty Safeguards, or just unlawfully detained?  It’s not a question that’s taken up, but from a legal perspective it’s very important.  If they were unlawfully detained, police should look at charges of false imprisonment on top of other charges relating to assaults and neglect.  If they were detained under the DoLS, who wrote the assessment that detention was in their best interests?  Did they place conditions upon the detention, and ensure they were upheld?  Was this assessment lawful, or should families be looking at issuing proceedings for unlawful detention against those who commissioned the care?

We don’t have answers to this question and I’m going to wander into the realms of supposition and guesswork with little apology, after all, I am no journalist.

I am going to presume that there was a poor use of the Deprivation of Liberty Safeguards – and I make this assumption based on the following grounds.

Firstly, there is a very poor understanding and implementation of Deprivation of Liberty Safeguards (DoLs).  I am a  practising Best Interests Assessor and a a social worker in a team that is primarily responsible for older adult. I go to a lot of residential and nursing homes. I go to a lot of hospitals. I observe and sometimes I assess. I have seen poor implementation and understanding in my own experience and can’t even begin to count the errors in the knowledge of the basic  tenets of the DoLs procedure that managing authorities (residential homes, nursing homes and hospitals) have. It’s a job to explain to colleagues as well.

This isn’t necessarily through lack of training, although sometimes it is merely about the speed of turnover – the staff that were trained are no longer in situ,  but it is also about a way that the safeguards are perceived. It’s also because all the training was done prior to the safeguards ‘going live’ to ensure the procedures were in place  but there have been changes through case law and through practice so professionals are lagging behind on the legal procedural knowledge and with training budgets cut, it can led to dangerous and unlawful practice.

Managing authorities are generally  (not exclusively) reluctant to trigger them because somehow they see it as bringing more attention to the ways the organisation operates or they see it as some kind of criticism for the way that they manage care. It may be or it may not be. If there is a deprivation of liberty there needs to be a legal framework in which it operates.

I’d venture to say that everyone at every level in every residential care facility needs to have an understanding and knowledge of the law and the way it relates to people who lack capacity to make certain decisions. I wonder what understanding those who assaulted patients in Winterbourne had of the law.

Any number of times  I have been told that a managing authority will request an authorisation after a review or when the social worker tells them to which, in itself, shows a misunderstanding of the legislation which requires immediate action and requests for assessments as soon as (or actually prior to) a deprivation of liberty takes place.

With the issue of the Deprivation of Liberty Safeguards and the Mental Capacity Act more generally come the role of advocates. Independent Mental Capacity Advocates have a statutory role within the Mental Capacity Act just as Independent Mental Health Advocates have a role under the Mental Health Act. Were there any advocates involved with the patients at Winterbourne? If so were they given the access which is allowed legally?

I genuinely believe that alongside criticism of the CQC which I will probably save for another post, it’s worth looking at the role of advocates and the potential that they could have to prevent abuse and to protect people who are vulnerable to abuse. I wonder if there should be a more robust system of advocacy in place (hint – yes, I think there should) to monitor placements from the basis of each resident. Cost? Why, yes, it would. And therein lies the rub but in any discussion of improvement, I think the role of an independent advocate looms large.

So why didn’t the Deprivation of Liberty Safeguards, safeguard the patients at Winterbourne View?

My own supposition is because they were completely ignored and not used.

What might a Best Interests Assessor have discovered that a CQC inspector couldn’t? Well, each resident affected would have had to be interviewed, as would staff members and family members. Deceptive staff members and frightened residents would still have been respectively deceptive and frightened but additional questioning and listening could have potentially led to a breakthrough. There would have been an examination of care plans and methods (although as we discussed in the office last week – any home can present a beautifully person centred care plan on paper – it’s a matter of implementation) and there would have potentially been a route in for more ‘relevant persons’ representatives’ to visit and ensure the well-being of the person being ‘deprived of their liberty’.

In a sense, I do wonder how many other ‘Winterbourne Views’ there are out there. I think while the culture of the organisations and the role of power needs to be examined, there also has to be an understanding of the law as it stands and whether safeguards were used  – if they were, why didn’t they safeguard? and if they weren’t (which is my suspicion) why weren’t they? Surely that is for the management (and the government agencies which monitor the legislation) to answer.

Meanwhile in the Office..

Usually when I’ve mentioned workloads here, it’s because they are increasing or we are going through one of the ‘peaks’ in the general ‘peak or trough’ pattern of work balances.

I’m going to do it again because we are definitely in a ‘peak’. The problem is, the peak  has been pretty much ongoing for a few months.

The freeze on recruitment is biting much harder now. I suppose it was sustainable when one person, two people left. When numbers five, six, seven left it became more obviously apparent to everyone left in the office.

Our office has an empty look to it and none of us are ‘smart working’ or ‘working from home’. Sure, we have visits in the community but even at the beginning and end of the day, there is office space in overabundance that makes the thought of hot-desking comical.

So we are each working on more cases and the cases we are working on have more urgency attached to them as the allocation to a care co-ordinator have come later than they might otherwise have come.

Paperwork is being left uncompleted. Oh, you may pat me on the back for prioritising visiting service users and carers at the expense of ‘filling in forms’ but each piece of paperwork I don’t complete in a timely fashion has a consequence for said service user or carer. It might be a delayed processing of an individual budget – it might be the delay to a respite admission or a carers assessment – it might be the delay of attendance at a Continuing Care Panel (lovely 55 page assessment form sitting on my desk that induces nervous twitches). I could bring the form home – but I don’t. At the moment, I honestly think it is the ability to leave things behind at work and walk out at 5pm (as much as is possible) which is preserving my sanity.

It does mean that things aren’t getting done though.

There have been a couple of recent consequences of this – not helped by a rush of Mental Health Act Assessments  and Best Interests Assessments which had very time-specific periods in which to be completed.  For reasons that may be obvious, I have to prioritise Mental Health Act Assessments above everything else when they come in and Best Interests Assessments usually are requested in my experience during the 7 day period that an urgent authorisation is ‘running’ so have to be completed within that seven day period (note – these seven days have no consideration for the distinction between ‘working’ days or not and they include the period that the paperwork needs to flit backwards and forwards between Managing Authority and Supervisory Body so realistically, it means the Best Interest Assessor will have 3/4 days to complete the assessment).

My desk is like the inside of a paper recycling depot with filing done in various piles of paper. One pile is ‘things to be filed’, One is ‘things to do’, One is ‘not sure where to put this piece of paper’. I have overflowed to the empty desk next to me.

Yesterday some things  happened that caused me to reflect on the current work pressures.

Our service manager approached me at roughly 9.01am and asked me for the Self-Assessment Questionnaire for a service user (who has fairly advanced dementia and a distant and uninvolved family and therefore would need substantial assistance in completing it) I had taken on a few weeks ago. I hadn’t done it. She was very pleasant about it when I started listing all the other things that I had been doing. As I am wont to say when asked why I haven’t completed something ‘it isn’t like I’ve been sitting at my desk twiddling my thumbs instead of completing the work’.

The service user involved had a care package that had been set up as an emergency and it was actually working really well but we needed to create an individual budget for her. Ironically, I’ve visited her a few times to monitor the care package and ensure both that she is keeping well and to enable us to build up a relationship so she begins to both recognise and trust me. I didn’t get round to the SAQ as the format of questions was so alien to her. She didn’t want to answer questions about what she could or couldn’t do – indeed, she didn’t accept that she needed any support whatsoever and would say she didn’t understand what these nice ladies coming into her flat were doing (they were preparing meals for her!).  What she wanted was to tell me stories about where she used to work (although they were framed in the present tense) and tell me about her friends (mostly moved away or died) and how they visited her regularly.

I hadn’t completed the SAQ and the Performance Indicator Monsters are chasing me down. But, service user is safe and receiving support.

For me, this makes a mockery of the process of individual budgets. Yes, she could have a wonderfully creative package of care in place. But where is the time to sit down and talk her through each stage when she is (understandably) completely disinterested in process. It can feel almost cruel to labour the point for the sake of the department completing forms and ticking boxes.

How is her service to be ‘personalised’ and where are the champions of personalisation? They are telling us about packages of care where young adults can choose driving lessons to get around.  Where are the champions of the personalisation agenda in helping us with means to engage people who are frightened by the process and overwhelmed by self-assessment questionnaires?

Oh, wait, all the training is about people who take an active interest in being involved in the process of care planning and self-assessment.

I try. Believe me, I try. I have no interest in the process failing. Indeed, I held out a massive hope that personal budgets would serve older adults who lack capacity much better than the direct payments system did. I have been sorely disappointed.

Anyway having explained away my lack of action to the manager, she nodded, expressed sympathy and headed on her path.

Later in the day, I was confronted by an emergency situation. It wasn’t the nature of the emergency that caused me difficulties. I have dealt with many similar types of circumstances through my years of practice but what was different was my reaction.

I spoke to my manager and as we concluded that I needed to make an emergency visit, I asked for a colleague who was ‘on duty’ to accompany me.

The situation perhaps didn’t warrant it and there was an expectation that it was the kind of issue that I should be able to manage with my proverbial eyes closed but internally, I felt some of the panic rising. I suspect that was the combination of stress about workload issues and thinking about my next arranged visit.

My manager agreed for someone to go with me – possibly because I don’t think I have asked of assistance with a visit  for about three years so she might have clocked on that something was up so  we went together.

On arriving, I saw that the situation is one I could easily have managed alone. I felt almost embarrassed that my colleague had come with me but then I thought, I knew I had been right to ask. I can recognise my own reactions and needs better than anyone else.

Situation resolved successfully, I apologised profusely to my colleague for ‘wasting her time’  but she, of course, denied this and said she was happy to help.

The rest of the day, I was analysing why I had asked in the first place. Why did I suddenly feel phased by an issue that I have dealt with successfully many times before? I’m not sure I can answer that but I think I’ll put it down as a positive recognition that sometimes, we just need a little more help in the day to day work and we need to be able to recognise these moments to better serve those who rely on our services.

Even after ten years, I still have ‘wobbles’ of confidence. They happen less now as is to be expected but for a moment, it was as if I had been transported back to my early days in practice when I wondered if I would ever be like my more experienced colleagues and able to manage anything that was at the end of the telephone line.

It reminded me I’m not there yet and perhaps I never will become instinctively complacent about the work.

That’s not a bad thing as long as I’m in a team that is encouraging and supportive.

And I am.

Press, Perception and the Court of Protection

Having had to study the Mental Capacity Act in fairly great detail, I often have to turn to judgements made by the Court of Protection to extend my general legislative knowledge.

The Court of Protection has a number of functions that can get easily interwoven but generally, it makes judgements about issues of capacity.

It’s always interesting to me how the press report Court of Protection judgements as in general the court sits in private . It isn’t thought of very highly by the press – probably for the very reason that many of the cases take place behind closed doors – which is particularly unusual for a court in the UK. Indeed, it’s traditional journalistic byline seems to be ‘the-secretive-court-of-protection’.

There was a case this week which was heard which involved a pregnant woman with learning disabilities and a decision which was to be made as to whether she should be subjected to a sterilisation following the imminent birth of her child. It is very emotive and difficult as an ethical subject.

The Court decided, unusually, to open up the case to the media with the usual and understandable constraints of anonymising the parties.

What I found interesting was a comparison of reporting about the story before the case was heard and afterwards.

The Daily Mail is a case in point. On Tuesday Morning it published this piece.

They quote a spokesperson for Mencap

David Congdon, of disability charity Mencap, urged the court to ‘tread very carefully.’ He said: ‘It is a gross invasion of someone’s basic rights unless there are clear medical grounds and there do not appear to be in this case.

‘Using sterilisation as a form of contraception is totally unacceptable.

‘Years ago there were lots of cases like this but we hear of very few these days.’

Applications to sterilise women with learning difficulties can come from local authorities and do not require the backing of their families, he said.

‘The family’s position in these issues is not that great, because the person is an adult,’ he added.

‘They have to be consulted, but the application may have been made by social services.’

I can’t say I disagree with Congdon, it is a massive potential infringement of human rights to forcibly sterilise anyone but the weighting in the quote implies that the court disregards the family and it is a cunning and devious decision made by social services. Regardless of the fact that it is a medical procedure and any application would have to be made by the Trust employing the medics who would be responsible for carrying out the task.

The Telegraph use the same quote. As does the Independent which adds

Since the Independent’s battle to open up the Court of Protection, the paper has received numerous calls from people who allege that local authorities have been using the automatic secrecy governing the Court of Protection to severely restrict access to their loved ones. Because the hearings are largely held in private and no court listings are generally published earlier than the afternoon before hearings, it remains difficult to investigate and analyse such allegations.

You see, it’s easy to make one-sided complaints about a Court or a local authority when you only have a part of the story.

It’s easy to accuse ‘social services’ of being overbearing and evil when they are not able to construct any kind of counter-argument for the sake of the service users they represent. I say this having been involved personally in a case which could have been presented in a very one-sided way and would have been prime meat for the front cover of The Daily Mail – however the background of abuse within the family meant that what might have appeared to be callous actions had to be taken. We could never disclose that so would never have been able to defend ourselves.

But back to the secretive Court of Protection. The judgement or lack of it came yesterday as more information about the case was revealed.

It so happens that the woman’s mother was in favour of the sterilisation of her daughter. This is not a situation where the family have been side-lined by any means.

As the Mail put it yesterday

The woman, known only as Mrs P, broke down as she explained the drastic procedure was the only way to spare her 21-year-old daughter the heartache of having further children and being forced to give them up for adoption.

The daughter, known as P, already has one young son and is due to give birth to a girl today by caesarean section.

She was described as ‘sexually healthy and active’ but unable either to exercise restraint, or fully to comprehend the consequences of her behaviour.

Her mother told the Court of Protection that while her family would support these two children, they could not cope with any more.

She said: ‘I want the best for my daughter. We want to keep the children together as a family unit. But obviously we can’t keep on supporting more and more children.

Not really the evil social services taking action behind the backs of families that might have been implied the day earlier from the reporting.

It is an incredibly difficult decision to be made and as it happened, no decision and therefore no sterilisation order was made. The judge, ordered that at present there was no sufficient evidence to meet the criteria for such a drastic action under the Mental Capacity Act and while the best time to perform the sterilisation would have been at the time of the caesarean (which I believe was to take place this week), further hearings will happen over the next few months before a final decision can be made.

Clearly it is not a body that makes heartless and unconsidered judgements for the sake of it and loathe though I am to wander into the comment sections of Daily Mail stories, the difference between tone in the first story where the situation had been set up and has comments such as

‘All those in favor please show us your Nazi membership card as this is exactly what they did, So be very very carefull, many alive now do not understand the implications of what is potentialy a dangerous and devastating and far reaching precedent bought on by these council jobsworths. ‘

And

‘OMG, my blood is boiling reading this tragic story. What right do the council have to do this? How severe are this woman’s learning difficulties? Why not give her a contraceptive jab every 6 months, given at home if need be? Are social services and a representative of the secretive family court going to be present at the birth of the baby, whisk the baby away as soon as it is born and put up for adoption? If this is given the go ahead by the judge and forced sterilisation takes place, this is just the start. We will have crossed a line and the ‘Brave New World’ will begin. ‘

I know the Daily Mail comment section is not the place to look for rational argument and debate but we get a feel of the general perception that this is somehow a ‘council decision’.

After the information is shared in the second article, the tone of the comments change to

It’s sad but i have to agree with the mother. I think she has a very valid point. She will be looking after the children and it will break the WHOLE family’s heart should they have to give up any children for adoption. Also what happens if she falls pregnant every year till she can’t have any more children. The daughter clearly does not understand the situation because of her disability.

And

Unfortunately due to the Human Rights Act, this mother’s desperate plea will be ignored despite the emotional, psychological and physical turmoil this young girl will go through again and the stress and pain for her family. Very sad situation for everybody involved including the unborn baby.

Please don’t assume that I am ‘in favour’ of the sterilisation as a matter of course. I’m not but I do think the decision is absolutely taking place in the right arena where the considerations of P and her family need to be wholly taken into account under the law.

It’s just easy to see, in this case, how easy public perception and tone can be altered by reporting styles and language.

Deprivation of Liberty Safeguards – a few thoughts

I’ve written about the Deprivation of Liberty Safeguards (aka DoLs)  and Best Interests Assessments before but the last time I touched on them in detail was a back in 2009 when I looked at some of the initial assessments I had done.

Now, almost two years down the line, there is a slightly better understanding of the process and it is something I’ve been asked specifically about so I thought I’d run through a few thoughts on the issue.

The Deprivation of Liberty Safeguards were introduced as a part of the Mental Capacity Act 2005 and ‘went live’ in April 2009.

They were introduced as the government’s response to a European Court ruling on the HL v Bournewood case. The details are in the link but very very basically, it involved a man who was an informal patient at the Bournewood Hospital and the illegality under the European Convention of Human Rights, to be deprived of his liberty in ‘informally’.

Article 5(4) of the European Convention of Human Rights – now (and since the incident at Bournewood) incorporated into UK law as the Human Rights Act 1998 – states that

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Article 5 is a limited rather than universal right – meaning that  had HL been held under the Mental Health Act this would not have applied (and in any case, he would have had the right of appeal through the tribunal process). However as an informal patient he had no such right.

The Deprivation of Liberty Safeguards were an attempt to bridge the so-called ‘Bournewood Gap’ so that there was a legal framework which applies to people who are detained without consent and capacity and who are being deprived of their liberty and who are not subject to the Mental Health Act.

The process of identifying a Deprivation of Liberty falls on what is the ‘management authority’. This would be the care home or the hospital. Deprivations of Liberty must be instigated by a ‘public authority’ so this law does not apply to private homes or supported housing.

One of the biggest dilemmas for someone involved in the process is deciphering what a ‘deprivation of liberty’ actually is. There is little guidance and a little case law.

I tend to refer back to the Deprivation of Liberty Safeguards Code of Practice which attempts to give some examples. For me, the important thing to consider (as one of the ‘assessments’ I complete as a Best Interests Assessor involves establishing if a Deprivation of Liberty actually exists) is the difference between a restriction of liberty and a deprivation of liberty – one of which is liable to the legal framework and the other not. Chapter Two of the DoLs Code of Practice is useful in identifying some of the main issues to be aware of but as it emphasises each decision is unique in the way it plays out for that individual.

Incidentally – for those who were asking about the locked doors and keypads to ‘keep residents/patients’ in in residential homes and hospitals – this is dealt with in the Code of Practice. The existence of the locks themselves would not alone be a deprivation of liberty but there may be deprivations due to cumulative effects of ‘full and effective control’ by care staff or nurses on someone’s activities or by the degree and intensity of other co-existing controls.

Jones as well, in his commentary in the Mental Capacity Act Manual gives some examples of differentiation between restrictions and deprivations of liberty. This is something that we frequently discuss when we, as Best Interests Assessors meet and share practice and experience. Two people may not make the same judgement as to whether there is a deprivation or not.

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So if the managing authority believes there to be a (or that there will be)  Deprivation of Liberty – they request an authorisation. These can either be urgent or standard. They can allow themselves a few days if they see an immediate deprivation of liberty but they have to apply for a standard authorisation in the meantime which means the full assessments.

The managing authority asks the supervisory body (Local authority for care homes and PCT for hospitals) for an authorisation of the deprivation of liberty. The supervisory body arranges the assessment.

There are six assessments. Usually they are done by two individuals – they have to be done by at least two although more can be involved, I’ve never known it. The reason there have to be two is that the Mental Health Assessment has to be done by a different person to the one who does the Best Interests Assessment. The other assessments are usually done by one or the other of those assessors.

Neither assessment can be done by anyone involved in the care of the individual being assessed – although they can be done by people who are employed by the local authority/PCT etc who has asked fro the assessment.

Age Assessment – is the person over 18?  Seriously, that’s it. I quite like this one. It’s very straightforward. Particularly in older adults services.

No refusals – Advance decisions or decisions made by legal deputies or donees and lodged with the Court of Protection apply to treatment and care decisions under the Mental Capacity Act.  The wishes of the deputy or donee or the individual if they have made an advanced direction, remain valid and would supersede any Deprivation of Liberty order made.  Again, this is usually conducted by the Best Interests Assessor

Mental Capacity Assessment – The Deprivation of Liberty Safeguards only apply to people who lack the capacity to make decisions about their care needs and/or placement of treatment. This would be done in the same way that capacity decisions are made in other areas – starting from the base of an assumption of capacity. The Mental Health Assessor or the Best Interests Assessor can do this.

Mental Health Assessment – Any person that this applies to has to be have some kind of ‘disorder or impairment of the mind’ as defined in Section 1 of the Mental Health Act. The assessor must be a doctor with additional training completed. The assessment must take into account how that person’s mental health may be affected by the proposed deprivation of liberty.

Eligibility Assessment – if someone is subject to detention under the Mental Health Act or may meet the criteria for detention under the Mental Health Act they are not eligible for an authorisation of a deprivation of liberty. This assessment must be completed by a suitably trained doctor (s12 doctor) or an AMHP – because the assessor has to be familiar with the Mental Health Act.

Best Interests Assessment – this has to be carried out by someone who is registered as an AMHP, a social worker, an occupational therapist or a chartered psychologist who has more than two years post-qualifying experience and has undertaken additional training specifically for this purpose. They would be ‘approved’ by the supervisory body on an annual basis.

They must determine whether there is a deprivation of liberty existing and also if it is in that person’s best interest and/or if there is any less restrictive option that could be taken.  It can be a lengthy process and always involves family members, care staff/nursing staff, contacting anyone with any involvement with that person to get significant background information etc.  There are some situations in which an IMCA (Independent Mental Capacity Advocate) has to be employed.

If a decision is made to authorise a deprivation of liberty, the person to whom that refers has a ‘representative’ who would have the right to appeal. The representative is appointed by the supervisory body. Usually it is a relative but if there are no relatives, the supervisory body would employ an IMCA in that role.

Chapter 7 of the DoLs Code of Practice gives guidance about the role of the representative.

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For me while understanding it is a protection for someone who may be deprived of their liberty, the actual process is remarkably (although unsurprising clunky). The paperwork (in England, at least) is a horrific mash up of tick boxes that seem to lend themselves to repetitiveness. Assessments I have completed as a Best Interests Assessor are generally very interesting as I quite enjoy the process of trying to find out as much about a person as possible and digging around for information, the forms suck any interest in the process straight out of my every pore.

Personally, I think the whole process could have been better thought through. The ‘review’ and ‘appeal’  are much less accessible than the Mental Health tribunal systems which are in place and in my mind, there is less protection under the DoLs framework when compared to the protections under the Mental Health Act.

Relying on managing authorities (residential and nursing homes and hospitals) to identify there own deprivations of liberty has led to some unusual interpretation of the law. Particularly as they are reluctant to refer as they can feel that there is an implied criticism.

I  have  no doubt whatsoever there are many many of these deprivations of liberty that exist and are not referred.

Usually, you’d think the CQC might pick them up on inspection but the CQC don’t seem to inspect any more.

Has it actually helped practice? I’m not sure.

Generally, I’m a great fan of the Mental Capacity Act but this part of it I have many reservations about. I think it was actually poorly drafted and no-one thought through the practicalities before implementation but it isn’t going anywhere so we might as well deal with it.

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For further reading, I’d definitely recommend the

Deprivation of Liberty Safeguards Code of Practice – it’s remarkably easy reading for a government document. And it’s free to download.

Jones Mental Capacity Act Manual – has the text of the Act and some useful commentary.

The Mental Capacity Act 2005  –  A Guide for Practice (actually, I don’t have this book, but I have the previous edition which has been very useful for putting the some more difficult concepts into easier to manage forms – and I’m a great fan of Robert Brown’s books so I would happily recommend it even though I haven’t read it!).

The Decision Maker

Over the week, I have a few posts planned about different aspects of the Mental Capacity Act 2005 – it’s partly because I’ve been asked questions specifically about it and partly because I, personally, find the area enormously interesting.

Working, as I do, primarily with older adults, means that I work with a lot of people with dementia of one form or another. Working with a lot of people with dementia means that the issue of capacity or lack of it is one that we deal with every day. While far from setting myself up as an ‘expert’, I thought it might be interesting – possibly helpful – if I shared some of the issues that have raised themselves in our own borough.

 
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When the Mental Capacity Act 2005 ‘went live’ we had a lot of training about capacity, capacity assessments and the roles of IMCAs (Independent Mental Capacity Advocates).

In a sense though, the Mental Capacity Act just firmed up a lot of practice that had been  happening within the sphere of ‘case law’ or ‘common law’.

One thing it does do though, is provide more protection and guidance for anyone who carries out an assessment of mental capacity – and make no mistake – anyone can carry out an assessment of mental capacity.

Today I want to look at the idea of ‘The Decision-Maker’ as it is one that still causes a great deal of angst in the office.

Who is the Decision-Maker?

The Decision-Maker is the person ‘on the ground’ so to speak if they suspect that the person lacks capacity and  are there (figuratively as well as physically)  when a decision needs to be made.

So the carer who goes in to someone’s house in the morning to someone who cannot make a decision about what is ‘weather appropriate’ clothing, might be the decision-maker in that case.

A husband might decide that it is best for his wife to have steak for dinner rather than chicken because steak was always her favourite. He is the decision maker.

These are the kind of snap decisions that might not immediately come across as being subject to an ‘assessment of capacity’ but many people – especially those involved in care – would take thousands of decisions in the ‘best interest’ every day.

Most commonly it will be family members or carers who make these decisions.

Sometimes, of course, it is the involved professional.

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Last week, I was sent a letter from a GP asking for an assessment of capacity for an individual for whom I am the care coordinator because she was refusing to take her medication. Could tell him if she had the capacity to refuse medication?

I responded that I could not because the GP is the decision-maker.

(Of course, while happy to advise and support -  the decision is not mine to make).

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Another nurse in the team discussed with me a conversation he had had with a social worker in one of the community teams who had asked him to ‘make a decision’ about the type of care a particular resident was having at a nursing home.

The social worker is the decision maker. Sure, she can ask advice, that’s no bad thing. But she cannot delegate the decision making to my colleague.

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A few months ago, we had a request from a social worker in another team to assess the capacity of someone who had dementia to make a will.  The referral came to the team meeting and was summarily dismissed with a ‘the solicitor has to do that’ remark. It seemed counterintuitive at the time but the Code of Practice is very clear about this. (MCA COP 4.38 – 4.43)

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The person making the assessment as to whether capacity exists has to be the person on the ground who is suggesting (or not) that action that is to be taken.

Those are some fairly straightforward examples. Sometimes it is a much more difficult place to be.

There is someone I’m working with at the moment who lives at home. There are proverbial risks hanging from every corner of the house. I can’t even begin to recount them! She has been agreed for residential care. She has  family who take an interest who find they are constantly worrying about her and want her to move to a residential care home nearer to them although, they tell me with slight reservation, she always said she would rather die at home than go to a residential care home.

I’d like to devolve the responsibility of my decision to someone else. Really I would. I sometimes see my caseloads play out on the imaginary front pages of the Daily Mail or the Sun.

After completing my capacity assessment (I’ll come to the details of that tomorrow), I surmise that no, she does not have the capacity to make a decision about her needs regarding her residence.

That doesn’t mean that I then ship her off to a residential home even though she doesn’t want to go though.

My decision takes into account the risks and the strength of feeling that she wants to be at home and her utter and complete distress at mentioning residential care.

She remains in the community with increased support and every time I see her my heart is in my mouth.

I wish someone else would make the ‘decision’ but while other people can inform and support me with it – just as I said to the GP – it is my responsibility.

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Other decisions I might have made have been with the input and support of an advocate (Independent Mental Capacity Act Advocate has a formal role – which again, I’ll come to later in the week) but they don’t make a decision for me. I am not bound by their advice (although I’ve never gone against it!) but at the end it is advice to help me make a decision – not make a decision for me.

To make a decision there has to be a reasonable belief that a person lacks capacity. There are some indicators about what form and what steps should be taken during this process but as a professional being asked to make decisions, the most important thing that has been drilled into me is to ensure that I record clearly the reasoning behind my assessment and my decision.

We have some very good forms (I don’t say that very often!) that we use when we are carrying out these Capacity Assessments which really take us through the process and the legal requirements on a step by step basis and form their own record and reasoning.

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But I’ll come back to the process tomorrow.

In the meantime it is important to remember that the Mental Capacity Act is a document that protects the service user/patient/all of us.

Someone doesn’t lack capacity just because they don’t agree with the professional decisions made around and about them just as they don’t suddenly have capacity just because they agree to do what they are told.

Making decisions about other people’s live – especially very significant decisions – isn’t always a comfortable place to be – but the mantra of best interests needs to be playing in the background of our heads along with the very basic tenet of ‘what would this person want if they didn’t lack capacity?’.

The answer isn’t the same as ‘what would I want if I lacked capacity’ or ‘what would their family want for them?’  Sometimes it is but that isn’t necessarily the default position. Yes, of course family and friends must be consulted. As good a picture as possible must be created of that person’s life, aspirations and hopes. Often it is the same as the people around them who love them most.

It must though always be a very transparent decision that, if challenged, can be defended. To the Court of Protection if necessary although lets hope it never is!

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It’s a lot of responsibility at times but legally it can’t be shirked.