Neary, Hillingdon and Best Interests Assessments

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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.

Related articles

• Autistic man ‘let down’ by council (independent.co.uk)
• You: Local authority unlawfully detained autistic man (guardian.co.uk)

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.

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.

Undercover Care : The abuse exposed – A Review of Panorama

I sat down to watch Panorama yesterday and the trailers and name of the programme were something of a giveaway so I wasn’t exactly unprepared for what was shown.

Panorama had been alerted to abuse within Winterbourne View near Bristol, which is a private hospital run by a company called Castlebeck for people with learning disabilities and autism and according to the description on their own website

..  is a purpose designed acute service, offering assessment and intervention and support for people with learning disabilities, complex needs and challenging behaviour.

It can also provide a service for those liable to be detained under the Mental Health Act 1983. It offers a stable, structured and therapeutic environment and the support of caring and dedicated staff.

Winterbourne View, which has 24 bedrooms, offers the chance for people to progress to more community-based living as part of their ongoing rehabilitation, at their own pace.

Winterbourne View charges an average of £3,500 per week for a place. I wonder how much is spent on staff costs and training.

Acting on the information from a former senior nurse there who had been whistleblowing, Panorama sent in an undercover support worker (journalist) and some hidden cameras. I knew I was prepared. I knew we were going to see abuse but nothing prepared me for the actual footage that I saw.

I try not to engage in hyperbole but what we saw was purely and simply torture of adults who have needs which make them more vulnerable.  Physical restraint was used as a punishment and some members of staff were deliberating provoking residents almost as if it were a sport and they were playing at bear baiting. It made for uncomfortable and emotional viewing.

I worked for many years in homes for adults with learning disabilities before I qualified as a support worker and the lack of humanity with with the residents in the hospital were treated was almost physically painful to watch. The programme showed a woman being given showers fully clothed and being dowsed with water outdoors on a cold, March day until she was shivering profusely. They showed her being pinned under a chair.

In one of the most troubling pieces of footage, a girl is shown as she had tried to jump out of the window and the staff mock her attempted suicide and taunt her to ‘try again’ and ‘make a better job of it’ saying things like ‘do you want me to open the window more’ and mockingly telling her she would make a ‘splat noise’. Even writing it out is difficult.

There were other things – comments made, pin downs and the use of martial arts techniques which are, unsurprisingly, wholly inappropriate and this footage was shown to a specialist psychologist with the Tizard Centre who would respond with the same gut horror that you didn’t need to be a psychologist to understand.

The footage really spoke for itself and I wondered about the position of the undercover journalist who stood by and watched some of the abuse occurring. There is an issue of ‘greater good’ versus ‘personal responsibility’ so the argument would be that the programme itself was able to prevent future harm coming to the residents by being transmitted but he admits that it was difficult for him.   He says here

I was watching on the sidelines, resisting putting a stop to this (abuse) and blowing my cover. Simone was staring at me as she lay on the floor, staring at the only person not abusing her.

I could not save Simone on that day. I had to resist my instinct to step in. I was there to gather the evidence that could help save others from a similar fate – and Simone herself from future abuse

Some of the more difficult responses came later in the programme as the CEO of Castlebeck was interviewed and of course expressed disgust and surprise at the levels of abuse in Winterbourne View. A company statement is published here and alongside all the usual guff is an acknowledgement that the whistleblowing policy was not adhered to when an initial complaint was made by a staff nurse on 11 October 2010. The footage was filmed between February and March 2011.

I was more furious by the response of the CQC. The whistleblower also contacted them, you see with the allegations of abuse. He contacted them three times.

Winterbourne View had last been inspected ‘two years ago’. Is that the kind of satisfactory inspection regime that we have, Mr Burstow? Oh, wait, it’s ok, because the statement from the CQC says Burstow has authorised a sample of 150 hospitals receive random unannounced inspections. Woah. Only 150? Only a random sample? Why just hospitals for people with learning disabilities? If random unannounced inspections are seen as necessary to prevent institutional abuse on such a wide scale, surely they should be the NORM for everyone who receives a service via a service inspected by the CQC.

No, you see, Burstow (and the Labour ministers before him) seem to think that self-regulation is the way to go. The way the man from the CQC squirmed as he insisted that the paperwork had been in order at Winterbourne View tells a tale all of its own.

And as for the staff, four have been arrested to be charged under s44 of the Mental Capacity Act which makes it an offence to ill-treat or wilfully neglect a person who lacks capacity.

It also begs the question – where were the Deprivation of Liberty Safeguards? Were any of the residents detained under DoLs  – or the Mental Health Act for that matter (as the hospital was assigned as such to accept people detained) and if that was the case, shouldn’t there be additional checks. Would independent advocates provide a further check?

There are a lot of questions that remain and the main one is the way that institutional abuse can fester in a residential care setting. There are wonderful care homes and hospitals around. I see them and I worked in them and often the ethos trickles down from top to bottom. Staff who see other staff abuse residents can ‘join in’ to be accepted – it is a classic position of bullying and unfortunately sometimes people who enjoy this kind of power play are attracted to work in social care. There needs to be an environment that does not accept this and that stamps down on it immediately and that was the real failing of Castleview.

This was not about 4 rogue members of staff. This was about an environment that allowed them to abuse and for that the senior management up to the Chief Executive should be responsible. Where is the support and training for staff who have to work in stressful environments? Where was the supervision that would have stamped out some of the abuse.  That doesn’t excuse those who were responsible for mistreatment  but it draws interesting parallels with the sacking of Shoesmith.  Wouldn’t we be baying for the blood of the CEO of Castleview? Or perhaps because the abuse took place in a private setting there are different lines of responsibility.

I think we should look long and hard about how we, as a society, seek to push people on the peripheries of society, because of age, disability or capacity to the margins of society and people to provide care who are not regulated and not supervised.

When the regulator fails so substantially as to ignore someone who whistleblows explicitly, do we not see a problem the ‘system’ that is increasingly reliant on proactive ‘complaints’ to trigger assessments?

There is much to do and much that needs to be changed.

I wouldn’t say I enjoyed the programme, it upset me and it angered me but I think everyone involved in the sector should watch it.

It can be viewed here on the BBC iPlayer.

Are Beans more valuable than People? – Or A Day at Community Care Live 2011

Yesterday I went to the C0mmunity Care Live conference. It is an annual event put on by Community Care Magazine and runs across two days. Being one of the very few free events (and excellent – free isnt the ONLY reason I go but it does help!),  I’ve always made an effort to attend on one or other of the days and try and catch up on the workshop and debate programme that is put together about a very wide range of subjects relating to social care in the UK.

I went to a few workshops and my attempts at ‘live tweeting’ were scuppered initially when a colleague from work came to sit next to me in the first session.

It was a packed session run by the Mental Health Foundation about their Dementia Choices project and the title of the session was ‘Can personalisation and direct payment support work for people with dementia?’. There was an initial presentation about the research evidence and the project that the Mental Health Foundation had put together to pilot direct payments among adults with dementia  and then there was a talk from the daughter of a service user whose direct payments had changed her life.

I was a bit disappointed though. Not with the presentation and talks – they were very good and it was obviously something that was very deeply felt by those who have direct payments working for them but, in a sense, I felt that the speaker who first received direct payments for her mother in 2003 (I think – that’s from memory but it was a good few years ago) could have made the same speech about their use about 2 or 3 years ago before the move of the more widespread personalisation agenda. Her mother had been receiving direct payments for 8 years. What was ‘different’ then with this new push towards everyone receiving a direct payment?  I refer to my previous points about us knowing that direct payments can work incredibly well if there is an involved family to provide support for the person who may lack capacity but for the isolated older person who lacks capacity there is no ‘magic wand’ to make the systems that are over-complicated seem suddenly more empowering if there is no-one to take on the support planning role.

I’ve said this before and will again that I feel currently there is a two-tier service that we are providing where those with involved families and carers may receive the more individualised support plans simply because the additional time burdens of arranging support is placed on informal carers whereas those who do not have those networks receive exactly the same services as they always do – we just call it ‘managed personal budgets’.

The workshop instilled in me a kind of despair that this group of people that I work with a lot has again been sidelined in favour of the ‘easier’ groups. Where is the research with people who have greater cognitive impairments and who don’t have family members or carers who can or who are able to manage their support plans for them? Ah, a role for the voluntary sector perhaps? The problem is that the voluntary sector is also shrinking and someone needs to pay them so that a role for ‘support planning’ is likely to mean a lower personal budget.

Still, I know I should try and be more cheerful about it. It just seems that so much of the research time spent about personal budgets has been telling us things that we already knew about research that had taken place around marginalised groups regarding direct payments.

The second session I went to was about the need for media and social workers to work more closely together. Social Workers should not be afraid of the media and the media (and by that, the panel were referring particularly to main stream media – because that’s where the battles are to be won!) – should have a chance to engage more with social workers. The usual subjects of local authorities barring their employees from speaking to the press came up and hopefully the College of Social Work will be addressing this on a broader scale.

There are a lot of inaccuracies reported and it would be good to see more social workers able to contribute to debates about the work which we do to quell some of the misunderstandings.

I then went to session on Making Personalisation Work in an era of cuts. I almost didn’t go because I thought (wrongly, as it happened) that it would irritate me and that it would be people lecturing to us again how it is the intransigence of social workers which is holding up the forward march of social care.

It wasn’t that at all and for once, it really did sound like people were actually listening to what I wanted to say about the personalisation agenda and my fears for it. There is nothing at all I would like to do more than work in a person centred way regarding care and support planning. This is something I hope that I have always been doing since I qualified though. If it can be improved, it must be and I am more than willing to change every way I have of working in order to improve it but, and this was noted by the speakers, Peter Beresford and Miranda Wixon (of Think Local Act Personal) in some ways the government’s agenda of cuts has overtaken the meaning behind the ‘personalisation’ agenda.

Unfortunately, there has been a drive to try and deliver more for less and it is not only unrealistic, it can involve pushing people into making choices that they don’t necessarily want.

Beresford made the point that the government agenda is about pushing everyone onto direct payments as the ‘preferred method’ of delivering personal budgets but, he said, crucially – ‘preferred by whom’. Well, that would be the government.

There are more ways of delivering person centred planning and person centred support than providing the cash for someone to buy their own services and while it can work incredibly well for some people, there is the very real and often ignored or side-lined issue that it is not everyone’s choice to have that choice.

The excellent concept of personalisation and putting the primary role of designing support into the hands of the user of that support and the services is being lost to the marketisation agenda.

There was a speaker on the floor, in the question time who explained that the rate of pay for carers was lower than the rate of pay for employees in Tescos – asking, ‘Do we really value cans of beans over human life?’. It makes you ponder for a while – but there are vast issues about the undervaluing of care and support staff in our culture – not just through poor pay but through poor status. Surely the ‘heroes’ of our society should be the home carers and the support workers as much if not more than the professionals whom we traditionally hold in high esteem such as doctors – who, while performing fundamental roles are at least well-compensated for it.

Another speaker spoke about an issue that I am all too aware of where choice is actually reduced for service users as in-house local authority provided services are frozen out of the provider choice that has been given to users.

Can personalisation work then, in an era of cuts? We don’t have any choice. It will because the concept is a good one although the danger is that it has been completed hijacked by a government’s cost-cutting enterprise which will end up making social care delivery so restricted that it will barely exist in all but the most extreme situations.

It is not possible to detach ‘personalisation’ from ‘the era of cuts’ as local authorities have to divest themselves of many of their functions. I see a lot of third sector organisations and possibly private sector organisations moving into the support planning and assessment verifying and supporting roles. The money (when it comes) may come from the local authorities but they will not necessarily be involved in many of the intermediate processes. It may well be that some aspects of the work are far better done in other sectors. It will become far more usual for people to pay for their own care as the eligibility criteria rise – those who can afford it anyway – those who can’t afford it may well be waiting until they meet the critical bands of need before they receive support.

There will be a two-tier system of social care support. Those who can afford to meet their own ‘moderate/substantial’ care needs according to the Fair Access to Care Services and then shift to maybe receive some support from the local authorities as their needs increase – and those who can’t afford to meet their own moderate and/or substantial needs who will deteriorate more quickly and reach the ‘critical’ band which will qualify them for support quicker at the cost of their health and independence.

I am trying to think of a positive to end on. It was good to hear some of the concerns about the pushing out of the personalisation agenda are being heard. It was good to see groups of social workers who want to be engaged in the process of change.  I got a good supply of pens and although I wasn’t able to nab a mug, I did get a frisbee!

I almost forgot too, that the announcement of the memorandum of understanding between BASW and the College of Social Work – great news. Long overdue in my view!

Personally, I enjoyed being able to catch up with some people I’ve known a long time, others I’ve come across before and some I’d only ever met in a ‘virtual’ capacity – thanks to Shirley Ayres, the team at RiPfA and of course, the Community Care team as well as others who will remain nameless!

Related articles

• Personalisation in Mental Health and Older Adult Services (fightingmonsters.wordpress.com)

Secret Courts

There has been a lot in the news about super-injections and hyper-injunctions with the Press attacking this most obscene threat on our (their) freedom of speech. Perhaps I’m too lackadaisical about our first amendment   rights to a free and open press or perhaps it is seeing the way that the press push in when it is their own issues that are at stake but to be honest, I don’t really care to know which TV celebrity or footballer is having an affair with which model/ex-big brother contestant.  I presume granting of the said injunctions relate to the protection of children in general being identified rather than the celebrities themselves (although knowing absolutely nothing about the legal processes, that is an assumption of mine so feel free to correct me!)

I think there has been a blurring of the lines and issues between the reporting of these kind of ‘kiss and tell’ mega-hyper-super injunctions and the type that have also been targeted in relation to Family Court and Court of Protection decisions and there needs to be a greater understanding and separation of the issues between the two types of cases. It is a separation that I have seen little appreciation, understanding and knowledge of in the press who seem to be lumping these ‘secret courts’ in with the other injunctions when in fact, the issues and the roles of protection of individuals’ identities are different.

I think there are issues about having more open judgements in the Court of Protection – the Court that deals with issues for people who lack capacity – not least because the decisions of that court relate directly to my practice when working with the Mental Capacity Act every day at work (which I do). Decisions can be made public without any need to necessarily name individuals. Names can be redacted. Sometimes they don’t help themselves. Although I have no experience of Family Courts, I presume the issues are similar regarding identification.

The problem is that without clear reporting of the facts of a case, those who feel wronged by the courts (rightly or wrongly) have free rein to use Facebook/Sympathetic MPs willing to break these injunctions through Parliamentary privilege to cast the details of the ‘travesty of the court’ in their own terms.

Yesterday, I did a little basic research on a name that came up in one of the discussions about a name that is subject to one of these ‘hyper-mega-super injunctions’ – a name that came out on the social networking sites. I’m not going to link any further information here because it’s all ‘out there’  and the details are not the issue but the sites that I found and the language that I found did not seem to amount to a reasoned and level-headed information source of what the truth might be. The language was very histrionic, there were no holds-barred relating to naming young children and making accusations that can never be more than unsubstantiated unless another party in the case chooses to ‘go public’.  That isn’t to say a major injustice might not have been done. It could have been  but it is hard to know without the details that the Court itself was privy to.

So the Courts remain ‘secret’.

Perhaps I have too much faith in the ‘system’? I can’t help but admit that my job relates to my views on this matter.  I’ve been  involved in a case that was open to major misinterpretation in the press because we could never ‘go public’ about the abusive family dynamics and circumstances which meant that they (the family) couldn’t ‘care for granny’. All that was apparent was ‘granny being ‘held’ as a ‘secret prisoner’ in a care home’.

I know that I run the risk of being too trusting of the Court processes and am the first to admit that mistakes can and are made – certainly social services departments are far from always right –  but I also know that there seems to be so little understanding and knowledge of the Deprivation of Liberty Safeguards the area of the ‘secret courts/secret prisoners’ that I do know reasonably well for me to be sceptical of any newspaper reporting of it.

Wrong decisions are made and social workers should not be above the scrutiny of the press but it is  hard to make judgements about the truth of the decisions being made when only part of the story is known is that of the ‘wronged party’.

Conversely I also know there is a lot of misunderstanding of the Deprivation of Liberty safeguards and defensiveness  within local authorities too but I’m not sure the pages of the press are the best places for these misunderstandings to be ironed out.

Better the Courts actually allow more redacted reporting, perhaps, so that some of the more complex issues that social services, social workers and ‘secret’ courts deal with can be understood.

Related Articles

• Leading article: Secret justice can never command public respect (independent.co.uk)
• Pregnant woman threatened with prison for breach of gagging order (independent.co.uk)

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.

Related Articles

• Woman with learning difficulties could be forcibly sterilised (telegraph.co.uk)
• Court to rule on sterilisation of pregnant woman (independent.co.uk)
• Court to rule on sterilisation of mentally ill woman (independent.co.uk)
• Delay to ruling over sterilisation (independent.co.uk)
• Court to rule on bid to sterilise woman with learning difficulties (dailymail.co.uk)
• Disabled mother could be sterilised without her consent (telegraph.co.uk)
• Mother Sobs Over Plea To Sterilise Daughter (news.sky.com)
• Mother’s court appeal to sterilise girl, 21, with learning difficulties (dailymail.co.uk)
• You: Mother sobs at sterilisation hearing (guardian.co.uk)
• Sterilisation ruling: what is the Court of Protection? (telegraph.co.uk)

An Assessment of Capacity

Image via Wikipedia

I am constantly assessing capacity. It isn’t always done on the formal paperwork that we use when a major decision or one likely to have major consequences is being made.

Sometimes it is  a simple action that might be almost subconscious. Does the person who is drunk on the night bus know which stop he wants to get off at? Sure,  he’ll have capacity tomorrow but by that time he might be in Hertfordshire.

I wouldn’t say it is something that only happens at work. Incapacity happens to all of us at times. It might not be drunkenness but rather sleepiness.

Capacity and incapacity doesn’t just happen to older people with memory problems.

However, the Mental Capacity Act 2005 is very clear that attempts should be made to wait until a person has regained capacity – if it is a temporary state – when a decision is necessary.

And each decision and assessment of capacity is taken independently. Someone can have the capacity to make one kind of decision about a preference of daytime activity or preference about living arrangement but lack capacity over another matter – like managing finances.  It is not wholly uncommon for me to do a couple of capacity assessments simultaneously and have different results for each.

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I want to look back at a  capacity assessments I’ve done in the past. I’ve changed or amalgamated details to anonymise the scenarios and obviously the names are invented!

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Mrs Smith has Alzheimer’s Type dementia. She gets very confused by details and has a deteriorating short term memory. She lives alone. I was asked to assess and make a decision about her capacity to manage her finances due to some concerns that she had been giving money to a ‘friend’ who wasn’t really a friend and was now hassling her for more money.

It seemed initially quite straightforward.

The Capacity Act specifies 5 principles and on that basis I undertook the assessment.

The first is to assume capacity unless proves otherwise. This is sometimes quite a  hard one with some background information in your hand. It is more difficult to assume this position than it might seem.

All practicable steps must be taken to help that person to make a decision

A person is not unable to make a decision because their decision is unwise or we wouldn’t agree with it

Any decision taken on behalf of someone who lacks capacity must be done in their best interests

and – it must be the least restrictive option.

With those principles in the back of ones head – there are 2 other things to consider when actually assessing whether someone has capacity to make a particular decision according to the Mental Capacity Act 2005.

Firstly – there has to be some kind of ‘impairment or disturbance of the mind or brain’. This can be permanent or temporary and is incredibly broad. but then, this disturbance or impairment has to be sufficient to prevent them from making a decision at that time. If you can wait for a decision, you must.

These kinds of assessments would take place thousands of times in hospitals up and down the country as people are admitted who lack consciousness and decisions have to be made before there is a chance to ask about treatment choices.

In the case of Mrs Smith, I am visiting her at a time of her choice – late morning – we are in her home and she is familiar with me. Her dementia would be the impairment or disturbance of the mind or brain and while she has good days and bad days, the lack of significant variance in her cognitive functioning is sufficient for me to be assured that a time delay would not lead to her condition improving.

Having passed those hurdles there are four parts to the actual capacity assessment.

Namely that Mrs Smith

1. Understands the information relevant to the decision

So I ask her in general about her finances – how she gets her money, how much money she gets, what would she do if her money wasn’t available one week or didn’t turn up?

How much does she spend on her weekly shop? How much is a loaf of bread?

These might sound minor but it builds a picture for me of her understanding of finances and proportions of money. If she thinks a loaf of bread costs £50, giving £50 to her friend is going to have different implications to her.

These are also fairly straightforward questions to build into a conversation. It doesn’t have to be a form-filling frenzy and ideally should be in the form of a relaxed conversation.

I also need to be clear that Mrs Smith understands the implications of her actions.

So I might ask about savings and what she would do if she were £50 short one week – would she still have enough for the essentials?

2. Can the person retain the information given

I might ask back some of the questions I’ve asked previously or just add a gentle reminder or two about what I’ve already said.

Where was I? Ah yes, thanks for that, Mrs Smith, I was asking you about your pension, wasn’t I?

3. Weighing up the information as a part of the decision-making process

So Mrs Smith, you know when you are £50 short for the pension because you’ve given it to Mr Brown.. what is the result of that?

Sometimes someone might have a particular ‘block’ about the consequences of a particular actin – so Mrs Smith might say, I know that I am short but there’s always more money where that came from. I never run out of money on my £95 a week pension and lack of savings.

OK, not the best example but she  might be able t retell me the outcomes but not relate them to her situation directly or use the information given (she is £50 short) and find the relevance in her own life.

But that’s isn’t what she said.

She said that she had always given money to Mr Brown. Yes, it left her short of cash as it always had, did and would but she would struggle by. She just bought less.

4. The last part is that the assessee has to be able to communicate the information back.

Every effort has to be made to facilitate this for people who might have some kind of sensory impairment. Any kind of communication ‘counts’ – it doesn’t have to be verbal at all.

Mrs Smith was able to talk profusely so communication wasn’t a problem for her.

In the end, I decided that she did have capacity to make decision regarding her finances and fell into what I, personally, would consider the ‘unwise’ decisions area. She had, I learnt, given money to people who asked her for help, for many years. This was not new behaviour when she developed Alzheimer’s. She was more vulnerable now but that is for the safeguarding procedures to manage.

Just because she acts in a risky way doesn’t mean that she lacks capacity.

Just because she need to take actions to protect her, doesn’t mean that she lacks capacity.

It is just a simple example. I hope it’s useful to someone ‘out there’ in understanding the process.

We have lots of forms to complete, of course, but I try to jot down a few questions in advance that might take me through the first stages of ensuring someone understands the decision and has weighed up the information given. Each decision though is unique.

I would involve family and friends as far as possible because it builds a picture of who that person is and was and what they would want if a decision has to be made on their behalf.

Sometimes it is too easy to assume that someone lacks capacity from looking at their history and documentation.

Sometimes the harder decisions are to be made when capacity exists.

Lack of capacity does not just mean ‘we can make a decision for you’ – the decision has to be right for that individual. Not right for the professional. Not right for their family. Not what minimises risk.

But what would that person choose to do if they were able to.

It can be more of a quandary than first appears and is never a decision to take lightly.

Related Articles

• The Decision Maker (fightingmonsters.wordpress.com)

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.

Rising Admission Rates

Yesterday, via Twitter, I was alerted to the publication of the ‘Mental Health Bulletin  – Fourth Report from Mental Health Minimum Dataset (MHMD) returns 2010’. I know it’s a bit of a mouthful but briefly, it means statistics about admission, treatment and care by Mental Health Trusts around England.

There are a few tidbits of information that are worthy of comment and commentary.

The most obvious ‘headline’ figure presented is that there has been a 30.1% rise in people held in hospital under the Mental Health Act between 2008/9 and 2009/10

‘from 32,649 in 2008/9 to 42,479 in 2009/10’.

That’s a staggering initial figure for a change in a one-year period so I wanted to look at some of the possible reasons for this.

The survey itself indicates a large part of the change – being that

Some part of this increase was due to improved recording between 2008/09 and 2009/10, because a small number of trusts failed to provide MHA information in 2008/09. On a like for like basis, excluding the data for trusts that failed to return information in 2008/09, there was an estimated increase of about 17.5 per cent in the number of people being detained under the MHA – from 32,649 to 38,369

I’m not entirely confident I understand the baseline statistics but taking advice from those who know better, I’m happy to stick with that 17.5% increase.

My initial gut feeling and certainly the situation that tallies with my own practice experience is that the influence of the Mental Capacity Act has been crucial in leading to an increase in detentions that I, personally, have signed over the last year.

I understand that I might have a slightly non-representative view as I am a specialist in older adults’ mental health and primarily carry out Mental Health Act Assessments for Older Adults therefore I may see a disproportionately high number of people who may lack capacity due to organic mental ill-health (e.g. dementia).

However, the impact of DoLs (Deprivation of Liberty Safeguards) has led, through something of a drip-drip process and through caselaw – particularly GJ v Foundation Trust which established that there can be no ‘choice of law’ between the use of the Mental Capacity Act and the Mental Health Act for a ‘mental health patient’ in a ‘mental health hospital’, to an increase in admissions under the Act.  Actually, I genuinely believe it allows a far far greater protection than the DoLs process allows but I might be getting over-technical. Suffice to say that there has been a substantial increase in the amount of people on the older adults wards who are now detained ‘under section’ – who may well have, last year, been informal patients.

Of course, the issue of capacity or lack of it doesn’t solely relate to older adults but the examples I give are from my direct experience.

I’ve turned down a couple of Eligibility Assessments under the DoLs framework, suggesting the people whom I have assessed have been ineligible for a Deprivation of Liberty Order because they would otherwise be eligible for detention under the Mental Health Act. I’m just one person, I know,  but I know of other people in my Trust who have made similar decisions.

It may be a reason for some of the increase in detentions.

I’m not sure if the  cuts agenda has had a significant impact on status of admissions yet save the generalised increased levels of distress and higher potential levels of mental illness that may occur when the economy is in a depressed state.

In  our Trust there have been a massive reduction in the amount of inpatient beds available. Does that mean people who  might have been brought into hospital earlier are not? Possibly.  It may mean fewer  informal admissions take place due to the lack of beds and therefore situations deteriorate so an admission has to be on a compulsory basis. That may also explain why the length of time of stays has increased.

The other unsurprisingly depressing point made from the data is that

Whilst the number of people using services rose across all ethnic groups, the percentage rise was noticeably larger for the Mixed ethnic group (a rise of 17.7 per cent). The Mixed and the Black and Black British groups now both have rates of access to services that are over 40 per cent higher than for the majority White group (at approximately 3,800 per 100,000 population compared with about 2,700 for the White group).

The most obvious explanation of this relates to institutional (and overt) racism and a differentiation of the way the treatment and treatment decisions are made on the basis of cultural backgrounds.

If anything needs to be actively addressed it is this inherent difference in the system and services that seem to allow such disparity to exist.

Another interesting point that was in the main document was that

‘The number of women detained under the MHA who came into hospital via the prison or the courts rose by more than 85% since 2008/9 ….  The number of men in this category rose by 48.1% since the previous year’.

Again, staggeringly high figures. I wonder what significance changes to prison services has and will have on admissions to psychiatric hospitals via the court system. It’s not an area I have more than perfunctory experience of so I can’t comment in detail, except that it’s an interesting aside.

In fact, looking at the bare figures, it seems that these increases have made up a good proportion of the overall rise in compulsory admissions under the Act across the board.

As I’ve been reading through the document I came to the conclusion that I could easily cover about 10,000 words worth of analysis of the information provided!

What I would say though it that it’s worth checking the entire document because the information contained on the breakdown of admissions on the basis of gender, age and race make for lots of potential analysis and interest in the nature of work and how it is changing in mental health services in England.

The Death of the Independent Living Fund

Yesterday was quite a day for adult social services. As well as the more obvious announcements of the cuts to local authorities and the unveiling of a so-called ‘Localism Bill’, Maria Miller, the minister for disabled people announced that the ILF (Independent Living Fund) would be ‘financially unsustainable’ after 2015.

Financially unsustainable.  It didn’t need a whole lot of foresight to see this coming. Back in June, the ILF was closed to new applicants after running out of money – so the budget for this year lasted between April (when applications opened) until June (when they closed).

Community Care writes that

Miller said that the ILF would stay in place to fund existing users until the end of this parliament in 2015.

Its payments would most likely be transferred to councils to administer as part of personal budgets, though Miller’s statement does not specify whether funding would be protected at existing levels after 2015.

And so it starts, the shaking off of responsibility of central government to provide additional support for disabled adults and the move of the responsibility for the additional funding to local authorities.

There are a few things that it is important to bear in mind at this point. The ILF is only or has been only accessed by people who are most disabled and have the absolute highest care needs. It was set up in 1988 although the rules regarding eligibility were reviewed in 1993. The purpose of the ILF was, as it’s name suggests, to maintain and allow for people with high care needs to remain living independently in the community rather than the alternative which was and is residential care.

The current rules state that someone is eligible for ILF funding when input from a local authority reaches a current level of £340 per week, the ILF funding will match that amount that the local authority on a pound for pound basis.

In my current incarnation, I don’t come across people who have ILF payments frequently – it has, like DLA only been available for people between 18-65 and over 65s can only claim if they had an existing award prior to their 65th birthday.

In the past though, particularly when I was in a generic adult social services team, I had a number of dealings with the ILF. On a personal level as well, my father received money via ILF.

It’s worth remembering that the model for ILF payments in 1988 was revolutionary and one that has and continues to have a major impact on the progression of adult social care. The ILF gave the money for the first time, directly to the disabled adult to choose their own service providers and/or employ their own PA (personal assistant). The Independent Living Fund was very much the forerunner of the direct payment/personal budget progression and the model for both monitoring and extending budgets directly to adults with social care needs themselves was trailblazed by the ILF.

The money provided by the ILF had, of course, guidelines attached regarding what it could be used for but it was money given in addition to the very bare needs met by local authorities. It was and is money that contributes to providing a better quality of life for people with high level needs because, believe me, you don’t get to £340 per week level of needs if you don’t have very high level of support needs.

The difference that the ILF money made was for a carer to accompany a service user to the local shops rather than go out and do the shopping for them. It was the difference that allowed a carer to take a service user to the local swimming pool rather than relying solely on day centre services. There is no doubt in my mind that ILF money contributes precisely to quality of life differences rather than the life or death care that local authorities provided.  These are the examples that are often given for ‘care planning’ with personal budgets provided by the local authority – the difference is the amount of money that you have in the ‘pot’ and the potential doubling that happened when the ILF contributed – acknowledging that those with very high care needs had.. well.. the need for care over and above the bare minimum to retain a positive quality of life living at home rather than in a residential setting.

This is my main sadness is seeing its demise. It’s hard to stomach for the government but quality support and quality of life costs more money. Yes, the money has to come from somewhere but it shouldn’t  be a ‘burden’ . We, as a society,  should be prepared to pay the cost of it.

I know exactly what will happen when Maria Miller shifts the burden of cost of care back to the local authorities – the levels of care provided will fall through the floor and although  for some people (those currently in receipt) that money may well be protected for a period of time,  for those coming up through the ‘system’ who don’t have access to this additional support, it will create a group of people who may be living at home but on whose family the burden of care may well fall more heavily – removing the independent from the idea of independent living and replacing ‘living’ with ‘existing’.

As Lord Morris is quoted as saying by the BBC

“This will not save money. If you make it harder for disabled people to live at home, it will cost more because more of them will have to be in hospitals and other places of full-time care.

“It will mean far more of them having to be in institutional care at far greater cost to the taxpayer.”

It’s so horrifically ironic that as policies shoot away into the distance taking the goal of ‘personalisation’ as a mantra, that the very first forerunner  of that policy  which was revolutionary at the time – is being put down with no evidence that there will be any central government funding to replace it.

That’s not to say that the idea of the ILF needed to stay the same. I have no doubt it needed to develop – not least because I felt the age limits were at best arbitrary and at worse discriminatory -  but by pushing the burden back to increasingly pressed local authorities the government has alerted us to its real intentions about the cost-saving implications of the move towards personal budgets.