Panels

Since I’ve been employed as a social worker one of the constants in my working week has been the presence and existence of ‘panels’ in many different forms. There was a brief stage when we were told not to refer to them as ‘panels’ but rather meetings but it’s all the same thing at least, in the setting in which I’ve been working. They are groups of managers and professionals of a variety of provenances making funding decisions on behalf of the local authority or health service.  Of course sometimes they say it is about joint decision making (which is why the word ‘panel’ is frowned upon now) but that’s really a facade. I make recommendations but I have little authority over funding decisions.

Different local authorities often have different mechanisms so my explanations of the panels that I might attend come with the proviso that things are arranged and organised in a variety of ways.

We have panels which primarily make decisions about packages of care that exceed a particular baseline cost. That baseline has changed a variety of times but generally managers in each team are given a certain ‘threshold’ to which they can approve funding requests but above that and any application for funding for residential or nursing respite or long term care have to navigate a ‘panel’.

We have separate panels for high cost personal budget packages which would be provided for care at home and those which approve residential and nursing care/respite and continuing health care (which authorise applications for long term payment for care by the NHS )

Going to panel generally involves the transfer of reams of paperwork. I’d probably say it’s the most obvious way though that I provide the function of advocating for a particular service user or family member when I ‘present’ the situation to those who make the ultimate funding decisions.

Contrary to what some people might think, I have absolutely no vested interest in the local authority or NHS ‘saving’ money by not agreeing to a particular package – indeed, I won’t tend to bring something to the panel if I don’t wholeheartedly agree with it myself. I am a great advocate of money being spent where it is needed.  I have a general wish to see public money well-spent of course and I understand the need to ration resources but if I bring something to the panel and authorise an assessment, it is because I believe that that is what is needed according to my professional  judgement and as far as that’s concerned, balancing the rest of the local authority’s budget is not an issue I consider (which is obviously why these panels exist!).

Similarly with the Continuing Health Care Panels  I cannot conceive of a situation where I would bring someone to that panel if I didn’t absolutely want and believe that they should get that funding.  If I attend and collate a report it is because I and the multi-disciplinary team behind the report, believe in it.  I absolutely want people to get what they are entitled to and have no ‘secret instructions’ to try and deny the funding. The rules though are not altogether clear but it suits the funding parties and the governments to keep the rules complicated and unclear. There’s a lot of money at stake.

The panels are open to service users and carers but for me, personally, it’s very rare that service users or carers attend with me.

I have more often  had family members attend Continuing Health Care Panels with me and found it is a much better way of working as it allows a lot more transparency and removes one of those bars between me trying to put the words of others in my mouth.

By now, I know the people who sit on the panels and they know me. That’s a massive advantage in being able to persuade and cajole. It makes me realise how useful it is to have built up links and a reputation among the more senior management. I like to think that a trust develops.

Panels used to scare me because I’d be questioned, often in detail about the proposals that would have a substantial monetary implication for the local authority. My paperwork and assessments are examined in great detail and a level of scrutiny applied. Now that I’m more confident, I tend to take pride in presenting my reports and welcome the questioning as I know what to prepare, what to highlight and what to expect.

I’ve had panels where paperwork alone is assessed and where we are not required to attend in person.  I prefer being there ‘in person’ especially when there are any question marks that I feel I can clarify.

One of my favourite tasks in my work is feeling that I am genuinely able to advocate and navigate a person or family through the muddy mired waters of local authority funding streams and decisions. I wouldn’t say I enjoy the panel process although there is a satisfaction in having something approved especially if it is something you feel might be hanging in the balance, but I don’t dread them as much as I used to.

As for now though, it’s just another part of the process of seeing a paper ‘plan’ through to fruition.  I know they work differently in different areas – indeed, I’ve seen them in different forms in the local authorities I’d work for – but that’s how they work – whether they are called meetings or panels, the effect is the same.

And that’s the explanation of what the panels are – the other side of each discussion I have and each decision that is made by the faceless ‘management’ that I sit in front are that they are desperately important decisions to each person who is reliant on the authorisation of that funding to allow them to life their lives more fully, to allow their family to have access to respite services. My job as I see it, is to bring the paperwork and paper assessments ‘to life’. I am not only writing about a person on a pro forma, but I’m able to flesh out the requested questions and documents with a person, with a family, with relationships.

That’s why I don’t mind attending  these panels as much as  I used to. I’m not frightened of them anymore. I see them as an opportunity to take a crucially important role in someone’s life and to speak for them and not  just about them.

Castlebeck and CQC – Brief Thoughts

Paul Burstow MP addressing a Liberal Democrat ...

Image via Wikipedia

I don’t have time for a long post today, just a few brief thoughts that came to me as I considered the unsurprisingly critical report on Castlebeck by the CQC.

Of course it’s easy to be wise after the event but it leaves a bitter taste in the mouth when the CQC comes down hard on Castlebeck after it required a TV undercover programme to uncover the widespread abuse at Winterbourne View. Where is our faith in the CQC? Well, personally, I didn’t have any to begin with but this report is not a solution, it smacks of a desperation to gain any kind of public recognition of the CQC itself rather than a real attempt to improve any system of regulation.

Regulation costs. Good regulation costs. In the week that the Ofsted is planning two week, unannounced inspections of childrens’ services, I ask why services for adults have been allowed to be neglected?

Yesterday I heard Paul Burstow on the radio on my way home. Two things struck me, firstly that he didn’t seem to have any understanding of the difference between a hospital such as Winterbourne View and a care home. He  seemed to be happy to blame local commissioners for the quality of the placements that they commissioned in hospitals without an understanding of what had led to this situation – namely chasing the lowest prices.  He still is banging on about his so-called Excellence scheme which, if anything, will make things worse as I wrote here. The Excellence scheme is opt-in and it is for companies to pay to be a part of. That is not about excellence, that is about money-making.

The CQC should be demanding excellence from every single service it inspects. Every day. It doesn’t. It demands sufficient paperwork every couple of years, at most. That is how it inspects. Actually, the CQC doesn’t inspect any more. It does not have enough people to inspect, control and check.

We have allowed companies like Castlebeck to rake in millions of pounds of profits on the back of providing poor care to vulnerable residents and patients. We have allowed this because noone is calling the CQC and the government to account for destroying adult care services.

The CQC criticising Castlebeck – of course it will but remember this is on the back of one television programme with hidden cameras. What about the thousands of homes without hidden cameras? Where are the checks? Where is the scrutiny? Where is the excellence?

Light Touch Inspections, Winterbourne View and the CQC

There was a report on the Community Care website on Friday that the CQC were ‘calling time’ on their so-called light touch inspection ‘regime’ thereby rolling out potentially to annual inspections for adult services and care homes.

As the article emphasises

Bower said that the CQC had favoured a “proportionate, risk-based, light-touch” approach to regulation – in which services were left uninspected for up to two years in the absence of issues coming to light – but service users, providers and staff favoured more inspections.

“What people want, particularly people who use services, is for us to put our boots on the ground,” she said. “Inspections are a really positive quality assurance for providers.”

It’s hard to believe Bower would have been saying this if she had not been forced into the position by the Winterbourne View scandal where substantial abuse was uncovered.

A shame that she did not show more backbone and spirit in protecting the organisation that was handed to her to lead when all the cuts were coming hard and fast. It did not take a genius to work out that the only reason the so-called ‘light touch’ system was implemented in the first place was to save money. The problem is, that it has stripped the CQC of any credibility it might have had as a regulator.

And yesterday, this same CQC criticised Winterbourne View and it’s owners, Castlebeck had misled that self-same regulator about issues that where taking place and abuse that was taking place while they were inspecting the service.

Interesting to see the Independent highlight the issues which the CQC raised as criticisms of Castlebeck

Inspectors said they found people who had no background in care services had been working at the centre, references were not always checked and staff were not trained or supervised properly.

They added Castlebeck failed to meet essential standards, required by law, including:

:: The managers did not ensure that major incidents were reported to the Care Quality Commission as required;

:: Planning and delivery of care did not meet people’s individual needs;

:: They did not have robust systems to assess and monitor the quality of services;

:: They did not identify, and manage, risks relating to the health, welfare and safety of patients;

:: They had not responded to or considered complaints and views of people about the service;

:: Investigations into the conduct of staff were not robust and had not safeguarded people;

:: They did not take reasonable steps to identify the possibility of abuse and prevent it before it occurred;

:: They did not respond appropriately to allegations of abuse;

:: They did not have arrangements in place to protect the people against unlawful or excessive use of restraint;

:: They did not operate effective recruitment procedures or take appropriate steps in relation to persons who were not fit to work in care settings;

:: They failed in their responsibilities to provide appropriate training and supervision to staff.

While there is no excuse for such considerable failures, you’d think that a good regulator worth it’s proverbial salt should have picked up some of these issues through a thorough and robust regulation system.

Remember this is the same Bower who has promoted extensively the use of whistleblowing and family members as a ‘resource’ to augment their inspection processes. And then the organisation feigns upset when things are concealed to it.

How did we come to this? How did we, as a society, allow the organisation that regulates Health and Social Care to be stripped bare due to a resource-led decision and blunt its teeth so incredibly that people who depend on these services can have no confidence in its position to protect?

Money, cost, closed eyes and an ability to discharge responsibility for the care of those in our society who need particular protection has led for this situation to emerge.

Unfortunately I can’t go into details about some of the things I  have seen over the past week that makes me feel  much more strongly about these issues but suffice to say this – which, in itself – could even be too much.

I visited a care home which had an ‘excellent’ star rating. Yes, the stars are outdated but it is an easy way to check and remains so. There had been no inspections over the past year, at least, anyway. Excellent. And it looked it on the outside. My involvement was due to a large scale safeguarding investigation. Let’s just say it was very far from excellent and had been for a number of years, including when the last ‘excellent’ inspection rating had been given.

The inspections depend too heavily on self-reported data and too little on ‘feet on the ground’ and investigations skills. I sometimes wish I could try doing a really thorough, wholesale inspection of any given inspection service. I’ve worked in residential care. I know what I would look for. It angers and upsets me that self-reporting and the ‘light-touch’ were ever permitted for purely cost-related reasons.

But the CQC says it is increasing inspections – still it will not be close to previous levels. To see them criticise Castlebeck – all well and good – but it doesn’t take the responsibility for inspection and regulation away from them. It bears some resemblence to the social workers who are told they are more easily led by parents who conceal information from them. If the social workers are chastised for ‘believing’ why not the regulator.

It makes me angry. Maybe time to invest in regulation and inspection and demand better services that actually protect against, rather than mask poor care. It is ever more important.

Goodbye Southern Cross, Hello Open Public Services

So Southern Cross – the largest private care home provider in the UK will be closed.

What of the 31,000 residents who live in their properties? Well, the government has given us its assurance that they will be ok so that’s alright then.

Or not.

Goodbye, Hello

m kasahara @ flickr

On the day that the Open Public Services White Paper was published  (which can be found here – pdf) – which couched in the comfort of positive words like ‘choice’ , we would do well to heed the warnings of the way in which social care was sold off in chunks, from public to private and reflect on whether it is better to allow care homes to ‘fail’ in order to prove that the strongest will rise to the ‘top’.

The problem is that Southern Cross WAS the strongest. It did rise. It also speculated on property and ownership transferred away from the core business base of providing care and homes for those who needed both.

But on a more pressing issue, what will happen to those who live in Southern Cross homes and work for Southern Cross homes.

As the Independent says

Analysis by the GMB union revealed the names of 80 landlords who own 615 of the homes, many of which are subsidiaries of larger companies registered overseas. This makes it much harder to obtain financial information about the companies as rules governing accountability and transparency, especially in “tax havens” such as Jersey, Cayman Islands and British Virgin Islands are significantly more lax.

In addition, the GMB was unable to trace more than 120 landlords, which mean thousands of people are living in care homes where the identities of the owners and directors are unknown.

In the absence of full company accounts and other relevant information, such as the names of directors, it is “nigh on impossible” to assess whether they are suitable to run care homes funded in large part by public money, according to Andrew Craven, GMB statistician and researcher

At least the ‘Department of Health’ spokesman says

“Whatever the outcome, no one will find themselves homeless or without care. We will not let that happen. Today’s announcement does not change the position of residents. The Care Quality Commission will continue to monitor the services provided… We have been in constant contact over the course of discussions and remain ready to talk to all parties.”

That’s reassuring. Or not. Would that spokesman or anyone in the Department of Health want that level of uncertainty lying over their head or the heads of one of their parents? The residents of the homes will not know who their landlords are or whether they are fit to run care homes at all. Of course no-one will find themselves homeless – it will be the local authorities, the elected local authorities who will have to spend and fret themselves out of this one – nothing to do with the Department of Health’s reassurances – unless the Department of Health is going to compensate those local authorities for the time and cost they spend to ensure the welfare of residents of Southern Cross homes that may close.

As for the CQC, I think we have established that it is unfit for purpose and unable to regulate a care industry that has grown too large and too costly to be regulated efficiently. How about an idea? The Department of Health invests very heavily directly in the CQC so that they can provide at least twice-yearly, unannounced inspections together with a host of lay visitors attached to every single residential and nursing home?

No, the Department of Health is weedling out of this crisis as it will weedle out of the cost of ensuring that the residents of Southern Cross Care Homes are not made homeless.

Now, I want to link some of these issues to the Public Service White Paper that was published yesterday and particularly one or two sentences I picked out.

Firstly

In the context of rolling out more extensive ‘choice’ in other areas of government, the paper says

‘We will ensure that individual service providers are licensed or registered by the relevant regulator for each sector (e.g. the Care Quality Commission) so that those choosing services can known that providers are reliable, without stifling cost”

Does that not lead to a tiny little shiver down ones spine? The CQC is being held up as a reason to trust in this extension of ‘choice’.  Has noone mentioned the cost of good quality regulation, either.  It’s worth reading this post at The Small Places for more consideration of the way the CQC regulates social care services. The CQC has failed to regulate and the care sector is failing to deliver on personalisation so far. The care sector has had time to learn as well. We had direct payments for many years and before that the ILF (Independent Living Fund) which allowed payments to be made directly to adults with disabilities to choose care. The system should be sophisticated enough by now to deliver good quality, equitable services but it has taken many years even to reach this point. There’s a long long way to go.

Secondly

“The wider public sector has much to learn from local authority successes in commissioning, for example, in adult social care”.

See, look at us, government, we’re a success! Success. This is the end-result of success. Adult care commissioning is not a success. It has not extended choice unless of course (and I think I’ve found the key) success is based on the principle of privatisation and provision of contracts to the those who deliver at the lowest cost regardless of quality. That is the adult social care ‘success’ that the government is lauding in the Open Public Services White Paper.

We are dazzled by words such as ‘choice’ and ‘open government’  but they have no meaning outside ‘lowest cost’ and ‘discharge of responsibility’.

Think of Southern Cross. Think of Adult Social Care. It’s coming to our homes, our hospitals, our high schools and our highways.

So much for my week of positivity!

Initial thoughts on the Dilnot Report on Funding of Care and Support

Scheduling and exhaustion meant I didn’t have time to look at the Dilnot proposals in detail yesterday so this morning I have fired up my browser and am going to make a few initial comments on the baseline main recommendations and hopefully over the next few days can look at some of the details.

The Dilnot Report on Funding of Care and Support runs at 82 pages.  It attempts to forge a solution for the currently antiquated and inequitable system of care funding that is currently in place. Much talk has been made of the current threshold of £23,250 of assets, at which people currently become responsible for paying for their own care services but little made of the current discounting of homes in certain circumstances and the ability to raise a charge on a property to postpone payment of costs for care services. Nevertheless, this threshold was deemed as being too low. People who own houses like to keep houses for children. People don’t like those who ‘haven’t worked as hard’ or ‘saved as much’ getting something for free.

The system is broken though, don’t get me wrong, I just think the focus of the discussion has been too much around middle class fears of actually paying for something they believe should be free. Now, I’ve got that off my chest, back to the report.

The main recommendations are

- to cap lifetime costs of care between £25,000 and £100,000 – with a suggested threshold (which is used throughout the report for ease) of £35,000

- means-tested assistance will be extended to those who have between £23,250 and £100,000 of assets.

- Those who ‘enter adulthood’ with support needs will not be means-tested and care will be provided free.

-Universal disability benefits will continue but may be some differences in names regarding Attendance Allowance. (erm.. DLA?).

- There will be a cap on so-called ‘hotel costs’ in residential care between £7,000-£10,000

-There should be a national, portable eligibility framework which is more transparent.

- A government awareness campaign about planning ahead and preparing for potential age-related disabilities. And their costs.

- There should be a new information and advice strategy to help people through the confusing forest of knowledge.

- Better carers support and information.

- More health and social care integration

Of course, these recommendation run alongside the Law Commission’s report for changes in adult social care law. Together they could create a much better and clearer system than we currently have.

The ‘lifetime cap’ allows for insurance policies to be generated and probably very profitable ones too for the insurance companies. Most people do not need high level social care provision but the fear generated by the media is enough to drive right minded people into the arms (those who can afford it and who have substantial assets) into the arms of the insurance companies. I’m not sure how comfortable I am with the lifetime cap on care costs. It means the more wealth someone has, the more they are protected. I understand the logic behind it in that noone chooses ill-health and disability but the more than government spends on those who do have substantial assets, the less there is for those who cannot afford it and the higher the criteria to access support rises.

I just have a few queries which may be answered in the details. If Mrs Smith has a house worth £300,000 and she lives alone with no other substantial assets – say, for example, she has savings of £10,000 – is her house sold to release the asset worth up to the cap of £35,000 – assuming she doesn’t have an insurance policy? If she chooses to live in a care home which is private, but then the money runs out, will the local authority still move her? Will she ‘top up’ the local authority fees, paying above the ‘cap’ to do so? What is she lacks capacity and has no family?  I suspect all these answers are in the report but they will be questions I will be looking for.  The system of deferred payment is mentioned and I’ll hunt around for clarification.

The cap though, seems to be there to protect middle class votes.

I do, however wholly support the increase in the level of means-testing. I think it is entirely right to continue to means test up to £100,000 and I’d even go further than that. I don’t have a problem with mixed funding, I am just not entirely comfortable with the capping.

Again, the clarity of the coverage of those who ‘enter adulthood’ with care needs is entirely right. There is a necessary distinction between working age adults with care needs and older adults with care needs but quite rightly it is wrong to have a distinction fixed at a specific age. Indeed, Dilnot proposes that those who develop long term care needs before the age of 40 should continue to have a zero cap and costs should be met fully by the state. Above the age of 40 there will be some kind of tapering of the cap up to retirement age where the full proposed £35,000 cap would be reached.

Regarding the accessibility of universal disability benefits, Dilnot clarifies that he does not propose any reform that would lead to anyone losing their disability benefits and that attendance allowance will continue. I do wonder though how this ties in with the government plans to remove 20% of DLA claimants.

There are some recommendations though to change Attendance Allowance (AA). Firstly to change the name to something more understandable and an appreciation that many who are eligible for it do not claim it. That absolutely reflects my experience.  People who reach the cap when the government takes over payment will not continue to receive Attendance Allowance (or whatever it will be called) because the government is fully paying for their care needs – which makes sense to me.  The Personal Expenses Allowance (PEA) is proposed to continue – this is the payment that is made to people whose costs are met by the government in residential care and is currently about £23 pw – there is a suggestion that it should increase but not a recommendation.

The cap on hotel costs is excellent news in my view because I saw this as a potential ‘get out’ clause for residential homes. I do want to know how some of the private homes will adapt to these new systems though and what the cap will mean for overall quality of care provision.

The idea of clearer, portable assessments is a good one and long overdue. Eligibility criteria interpretation can differ wildly and there needs to be more transparency.   The minimum threshold would be applied at the ‘substantial’ level of care so I wonder how this portability will work for those who live in areas that meet lower levels at present.  It seems that there is some kind of recommendation to do away with FACS over the longer term.

Can’t be soon enough – a new assessment framework will be developed ‘with experts’. Please please please can front-line practitioners be involved in these developments – not just people who professionally develop policies and have never needed to use assessments in their lives. This is why we end up with unusable systems. There is also a way of building self-assessments into these new models. That’s the idea anyway.

The last recommendations about building awareness and improving quality of information seem to be sound all round. Nothing to argue about there.

I am interested in the recommendations as they relate to carers. As far as I am concerned, I want more than just an assessment for carers, I want the provision of more services. Supporting carers very well both financially and with practical and flexible support is probably the one aspect which can potentially save the government more money in the longer term than anything else – but more than that, it is an issue of ethics and morality. I know that doesn’t often come into government services but it’s something I feel very strongly about.

There is more commentary about the details of Dilnot in Community Care, the Guardian has extensive coverage (including an article I wrote before the details were known).

I also recommend Arbitrary Constant for links and discussion about Dilnot.

Mrs J and the Mystery Bristol Care Home (update – it’s Amerind Grove Nursing Home)

There is a story on the Community Care website this morning about an ombudsman’s report relating a woman, Mrs J, who was placed in a care home in Bristol.

Bristol waterfront at night

lovestruck@flickr
This was a  care home which was not only rated ‘poor’ or had no stars under the old rating system that doesn’t exist anymore but from the time she was placed in 2005 until Feb 2009 when she finally did move (only to die later that year) , the responsible council – Bristol City Council – did not monitor or review her placement adequately.

Her son, Mr P, asked for his mother to be moved however as the cost of the identified ‘replacement’ care home was higher than the cost that the local authority would pay, he had to make ‘top up’ payments.

The Care Home which strangely is not named in the report – and I find that rather suspicious to be honest, had had a number of safeguarding alerts over the period of Mrs J’s placement there. It had received a zero star rating and there had been a couple of ‘freezes on admissions’ – probably relating to the safeguarding alerts.

The council investigated and placed the responsibility entirely on the care home however the ombudsman found that the  council had failed Mrs J as it was the commissioner of the service

As the press release on the site of the Local Government Ombudsman says

The Ombudsman considers that there was maladministration in the Council’s reviewing and safeguarding strategy and is concerned about the poor communication between the Council and the family. The Ombudsman also finds that the Council had not properly considered the circumstances around Mrs J’s move to an alternative placement, which had led to Mr J contributing to the cost.

For the pain and suffering caused by the lack of appropriate safeguarding and review procedures, Bristol City Council were ordered to pay compensation to Mrs J of £6000 and to Mr J of £500 as well as pay back the contributions Mr J made towards his mother’s care between February 2009 and October 2009 when she died.

That’s the background and now my thoughts about this – deep breath.

It’s horrific. Firstly not everyone has family that are as determined as Mr J to pursue and stand up for residents in care homes. If Mrs J had not had a son, this poor practice and abusive situation may have continued with perhaps, some perfunctory safeguarding alerts but with little action in relation to the management of the care home taking place. The care home working in conjunction with the CSCI (predecessor to the CQC as inspection service) where people living in homes that are rated as poor (of course, they are not rated at all now – easy get out of this situation?) continue to do so without batting an eyelid as long as the fees are low enough to be met by the local authority.

Another thing – what about everyone else living in the same care home? Seriously. Were they moved as well?

Why is the name of the care home not given? Surely this information should be transparent. A government (and this not not just the present one but the previous one too – I am making no party political point here) which is bound to link choice to care decisions is finding it quite handy to mask the names of inadequate and frankly, dangerous, care homes.

I did a search of care homes in Bristol which had poor ratings at the time that the rating system was abolished in 2010 and there were none listed. Perhaps they had managed to haul one more star. These are the homes I found that had one star. It may well be none of these homes but it makes pretty depressing reading looking through inspection reports from ‘adequate’ care homes.

This raises a number of issues – mostly why on earth can’t family members and social workers making placements in residential homes know which home it was that failed so appallingly? Isn’t that how ‘markets’ work? Or is it through hiding behind reports which obfuscate and confuse and seem to dance around the real issues of care – in the long periods between when they appear.

Finally, a thought or two about the way the council were criticised and censured. £6500 will not deter a council from acting in the same way again. The cost of fully staffing/training a competent review team may be much much higher than that. Quality Assurance Teams in the councils are one of those ‘non-jobs’ or ‘back-office’ jobs that Pickles seems to like to mock but in the face of a national regulatory system that is little more than a joke, they could and would provide a great service to citizens who need placement – particularly those without strong advocates and family members to stand up for them.

We need these stories to have more publicity though because there needs to be a greater understanding of the challenges faced and the poor quality that has almost become tacitly acceptable in the ‘free market’ of care.

The imposition of the market economy into the care sector hasn’t allowed the cream to rise to the top for those who are wholly reliant on support for placement from local authorities. It has allowed care homes which charge low fees to thrive despite poor care provision because it suits both parties to allow them to continue and to allow their names to be protected.

This makes me angry. I did not come into social work to deliver what I consider to be poor care or poor care services. I want everyone to be able to access good quality care and support regardless of their income, savings, property values or their family or friends’ willingness and ability to advocate on their behalf.

In a world of rose-tinted spectacles through which the Care Minister seems to envisage that people like Mrs P will have more ‘choice and control’, we have to make sure that basic minimum standards of care are respected for everyone who is reliant on them.

And we aren’t.

UPDATE – BBC have published the name of the care home  – it is Amerind Grove Nursing Home owned and run by BUPA.   Mrs J is Mrs Iris Shipway.  This is the report from 2008 which gave Amerind Grove a 0 star rating.  It is a 171 bedded home. Stop and think about that for a while. 171 people in a care home. That’s big business. That’s not a ‘home’ – that’s warehousing. Would we place younger adults in 171-bedded units. Let alone poor 171 bedded units. And what about the other 170 people living there when Mrs Shipway’s treatment was so poor. Can we see how the large companies have local authority commissioners ‘over a barrel’? They would not be able to find alternative placements for that amount of people.

The answer is less institutionalisation – more creative thinking about alternatives to residential and nursing cares – the answer is not 171 bedded homes.

Rant over.

Neary, Hillingdon and Best Interests Assessments

Logo of Hillingdon London Borough Council

Image via Wikipedia

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.