Category Archives: mental health
A truly national health service as conceived in the post-war years has been tottering on the brink for a number of years. As the previous Labour government sowed, so the Liberal Democrats and the Conservatives will reap today as the NHS and Social Care Bill reaches its last stages in the House of Commons and the Conservative Party institute their idealised version on a market-led health service which will deliver profits into the hands of investment companies and will place efficiency above effectiveness in treatment delivery methods.
Yes, I feel bitter, very bitter. I don’t see the Labour Party hauling us out of the mess that the both the Liberal Democrats and the Conservative Parties have conspired to leave us with because the Labour Party in their previous guise very much laid the groundwork for this to be done.
I find it hard to believe the audacity and the incompetence of our political elite as they push through a hugely unpopular bill tonight but then, as I pause, I wonder if it is truly incompetence as they are ‘getting away with it’.
We have been confused by details and have been tricked into believing a ‘consultation’ process has taken place. It has taken place very much on the government’s own terms and the listening that has been done has been very selective.
I try not to have a blanket opposition to the ‘private sector’ and ‘profit-making’ in the health and social care sectors but I’ve been burnt by experience. There are some companies that may well be able to improve some aspects of service delivery and I completely accept we all need to move away from the blind public/private being good/bad depending on where you stand on the political spectrum. That’s quite hard for me to ‘get my head around’ as I feel instinctively that profit should not be made from ill-health but equally the government’s obsession with public being bad is equally short-sighted and damaging.
What really sticks is the way that Cameron has blatantly misled the country in the quest for votes. ‘No top down reorganisation of the NHS’ he said, lying openly to the nation and yet we have to accept the mishmash garbage that he is now leading through Parliament as the Health and Social Care Bill and it moves towards it’s Third Reading in the House of Commons today.
I feel angry at the way that language has been turned and stolen from us.
‘Choice’ has become a catch-word but as I have discovered through the ill-spirited and contemptuous way that ‘individual budgets’ have been delivered in social care – choice mostly a luxury of the ‘worried well’ or the more affluent middle classes – in whose ranks sit all those MPs who vote on these changes today.
Choice means very little if you are not in a group that can cost a company money rather than increase their profits.
We have been hoodwinked into believing that ‘choice’ will genuinely exist when these private companies rip up our public services to deliver profit to their shareholders? I think we should ask whose ‘choices’ is it that the government and the health companies that support then, they will be?
Let me turn to the social care sector again because that’s an area I am familiar with. I am very familiar in the ways that privatisation has worked or rather, not worked and the way that ‘choice’ has been promoted – falsely – as the achievable outcome for all end users.
The pushing of the public sector from social care delivery has decreased ‘choice’ in many instances. In the areas I’m familiar with, local authorities have been pushed out as providers of residential and home care services to be replaced by companies such as Southern Cross (RIP), Bupa, Care UK (always worth repeating that they donated to fund Andrew Lansley’s private office) and homes have closed, block contracts have been signed to provide care at the cheapest costs which increases profits for the private companies of course and limits choice for individuals who need these services.
Anyone who claims that the roll out of personal budgets has or will change this and has increased ‘choice’ I will point to those who have capacity issues – those without family or friends to support them – those who are more marginalised have far fewer choice than the ‘mainstream’ who are able to engage in the process and that suits the government and the propaganda machine just fine.
That is what I fear for with the Health Bill (I am not sure why it’s even called the Health and Social Care Bill as Social Care is so obviously a troublesome ‘aside’ for the government).
Choice may well be nice for making decisions about which hospital is most convenient for a scan but what is being done to assist, support and advocate for those who are not able to make choices?
We are all in this together? Really? I doubt it.
As for me, I’m off to the vigil outside the Houses of Parliament tonight with my local Unison branch.
The TUC have also organised an ‘online vigil’ to oppose the passage of this Act.
And then.. to the Lords. But I will take careful note of the voting as it happens tonight. And I won’t forget.
Sometimes, some days feel filled with sadness. I had one of those days this week. I don’t like to use the word ‘hardened’ but to put it this way, in over 10 years of frontline social work practice in some of the most deprived areas of the country and in the inner city, I’ve seen a fair bit of what society has to throw in terms of crumbs to those who are some of the most vulnerable members of it.
I look at the high rises that skirt around the cities and I see hundreds of lives being lived, families existing and stories being told. Some with hope and pride. Some with desperation and despair. All different, all a part of this community and society we live in. Poverty is real. Despair is real. The two don’t have to go hand in hand though.
I have a strong stomach and don’t bat an eyelid at all sorts of things when I walk into a house. I’ve probably seen worse.
In some ways, human misery is a part of my trade. Not always, of course, because there are the wonderfully reassuring smatterings of hope but difficult social circumstances and social deprivation run a theme through my career.
Although I often emphasis that mental ill-health is certainly no respecter of social class or financial assets, it is sometimes the level of deprivation and the difficulty and shame of poverty that I see that reminds me of the way that this political class intentionally ignores and isolates some members of the community.
Perhaps the most difficult part of my job is wrapped up in the AMHP (Approved Mental Health Practitioner) role. It is a mirror into my ethical compass and while I enjoy the aspects that were involved in training and the support and development and even community feeling I have with other AMHPs, the process of making a decision about someone’s forced detention in hospital or a forced medication regime is never one that can be taken lightly and I don’t think it is one that should ever be ‘enjoyed’. It is power, writ large. It is control.
Sometimes people thank you retrospectively for ‘making the right decision for me at the time’ but more likely that isn’t going to happen.
This week, I carried out a Mental Health Act Assessment in a hospital. That is very far from unusual. When I read the background and the circumstances, when I conducted the assessment and made the application for detention, which I did, I was overcome with a feeling of sadness for the action that I had taken and for the life that it predominantly affected.
For obvious reasons I won’t go into details – anyway, even if I did they would possibly sound fanciful and unrealistic. To people who think that I have a ‘difficult’ job, I would say I have had a walk-on part among some fine and very strong people who have had to contend with sickness, pain and family circumstances that have rolled all the dice against them in the lottery of life.
And when I sign the papers and write up the report, I don’t forget. I think, I reflect and I try to learn. What could we have done to prevent this situation from having occurred? Sometimes the answer is nothing but sometimes there might have been a different path, a different action or different guidance that might have led to a different outcome.
Sometimes, some days, I just feel overcome with sadness. Sadness at the injustices that are meted out by life, fate and circumstance. Sadness at the way that this society perpetuates and builds on those injustices of circumstance. Sadness at my role my own complacency in accepting that we have created such an unequal and unfair society.
In a community where people who live on state benefits are treated with an intention to humiliate and scorn and where the government not only condones and supports this, it tries to create further barriers between the ‘haves’ (with ‘have’ meaning working tax-payer) and the ‘have-nots’ (meaning those who depend on the state for income) it sickens me as I know that the rhetoric of ‘choice’ and ‘community capacity building’ are empty words which mean nothing without the world of privilege. By privilege I don’t mean money, necessarily, but include the privilege of having family or friends around, the privilege of being well enough to build up networks of support, the privilege of being a part of a community. There is so much more to privilege that cash assets or income.
Sometimes I want to shout against the system that I am a part of. The social care system in this country is not ‘fair’ – it reeks desperately of unfairness and the pushing of ‘choice’ in very narrow terms onto a wide range of people who in reality have no choice whatsoever further marginalises and discriminates against poverty, incapacity and isolation.
But I continue in my job. I go into work and ‘buy into’ the system. In my own defence, I fight as hard as I can from the inside and I don’t forget the names, the faces and the stories of those whose lives touch mine.
I remember, I note and I learn and sometimes, that just fills me with sadness – but when I stop feeling that sadness, I stop learning, growing and trying to create a better world. One person at a time. In spite of the system I work in and with rather than because of it.
Yesterday, while most of the media, fixated self-referentially on the Murdoch hearings and Cameron was flying back into the country, Lansley began to dismantle the National Health Service.
In the first wave, beginning in April, eight NHS areas – including musculoskeletal services for back pain, adult hearing services in the community, wheelchair services for children, and primary care psychological therapies for adults – will be open for “competition on quality not price”. If successful, the “any qualified provider” policy would from 2013 see non-NHS bodies allowed to deliver more complicated clinical services in maternity and “home chemotherapy”.
So we are led to believe that being open for ‘competition on quality not price’ will act to pat us on the head, reassure us, and direct us back to the ‘big media story’.
It worries me and it worries me for a number of reasons. Lansley’s words are couched in the words of ‘choice’ but I wonder exactly whose ‘choice’ it will be to make these commissioning decisions for which, no doubt, large amounts of money will change hands and profit-making publicly listed and private companies will be able to partake.
I admit to a bias having been exposed and having experience in the adult care sector which was subject to a similar rollout of competition which was supposed to increase choice and quality.
I’ve written many times about the end result and how it is one that has inherently favoured larger providers and companies that have been able to deliver on economies of scale rather than the poetic vision of small scale providers delivering local services. Those small scale providers were quickly priced out of the market and I fear this will happen again.
But wait, I hear, ‘quality not price’ Lansley says.. to which I reply, ‘nonsense’.
Why? Because there will probably be minimum standards of ‘quality’ that a service has to reach and beyond those, it will be a price competition. That’s what is supposed to happen in care – but who checks the standards? who will check the standards? How can we have confidence in a well-resourced and well-delivered service when regulators are so weak.
I do not want any private company to make a profit on my potential need for services for my back pain, my hearing or a child’s wheelchair.
Of course, making the publicly delivered service is clearly both too expensive and veering against the government doctrine of handing the healthcare to private companies.
I am sure the first few providers will intersperse local voluntary organisations with large multinational corporations in their delivery methods. Again, I point to the adult social care sector. We started along the path with the NHS and Community Care Act (1990) having a lot of local providers together with a few Southern Crosses and Care UKs. The local providers were eventually priced out.
Of course in the case of podiatry and hearing services as well as primary care psychological therapies, we can see these as almost discreet services. The ones that will potentially be easy to deliver and it will always be possible to find wonderfully successful outcomes for people choosing Boots rather than the local NHS for their podiatry appointments because it is more convenient. And I’m sure it seems to pave the way for Individual Health Budgets where people are given the money to ‘spend’ on the services that they need. Choice you see. Choice is what it’s all about.
I turn back and look at what has happened in social care. Choice has been extended in wonderful ways to those with the loudest voices but in some ways those with the highest needs have been left behind. That is my main concern about the introduction of private into public.
For some people, the people in the comfortable middle classes of Chipping Norton, this is fantastic news – they can access their IAPT (or equivalent) by a local provider when they are feeling a bit down. They can have their feet checked in a local branch of Boots instead of having to travel into Oxford. All’s well.
Those will be the areas where both competition and choice are the highest.
My concern is that people who experience the degradation of poverty will have quieter voices and less choice because there may be higher multiples of health difficulties and choice is determined through power. I can’t help but think of people who are restricted in their choice by issues of capacity. Will they be given advocates to assist with the process or will they just be ignored? Will the choice by made by GPs who are courted by these private companies, just as they are currently courted by drugs companies?
How equitable will the ‘new’ system be?
If we are extending choice, we have to extend safeguards and checks.
If we are extending choice, we have to extend quality.
It hasn’t happened in social care – there is no reason to believe or trust that it will happen in healthcare.
It does make me wonder – Are we all in this together? Really? With the impact analysis projects that are carried out to ensure equality, I know there are provisions to look at ability and disability, gender etc but are social class and income level also considered?
And think – Lansley considers putting ‘quality’ in as a concession – he was happy to go ahead with the Bill and with a pure ‘cost’ factor. This is his so-called concession but it is no concession at all if we don’t have a definition of what ‘quality’ is. After all, the CQC – too look at the Health Care regulator – defines ‘quality’ on the basis of paper documents and paper inspections given to them by provider services.
If that doesn’t wave any red flags, I don’t know what will.
This is a government of interests rather than representatives. The shame is that the last government was too and likely all the future ones will be as long as we allow our heads to be turned more quickly by celebrity gossip than the tragedies unfolding in our adult care services.
- Private sector firms invited to bid for £1bn slice of NHS (independent.co.uk)
- NHS services to be opened up to competition (guardian.co.uk)
- More competition planned for NHS (bbc.co.uk)
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.
I also recommend Arbitrary Constant for links and discussion about Dilnot.
Tags: Andrew Dilnot, british politics, care and funding, dillnot report, dilnot report, dilnot report on funding of care and support, dilnott report, Funding, funding of care, health, local authority, long-term care, Means test, nursing home, old age, social care, social work
Yesterday Think Local Act Personal (TLAP) published the results of a National Personal Budget Survey.
Is any of this a surprise though? We know that people who can and are able to manage (or have family members to help them to manage) personal budgets delivered through direct payments (where money is paid directly to users) prefer them to less flexible local authority provided care packages – particularly when the scope of local authority care packages is limited to agencies with block contract arrangements.
In Control – which publishes the survey – highlights the following ‘implications’ from the findings. The bold is a direct quote and the italics are mine.
Other implications that can be drawn from the survey results include:
- Personal budgets work better for older people than you might expect and direct payments work just as well for older people as everyone else.
Who said we were not expecting personal budgets to work for older people? Does this make an ageist assumption and lump together all ‘older people’. Of COURSE they work as well for people who are 65 as they do for people who are 64 but what about people without capacity or who don’t have family or friends involved? What about a more subtle distinction between 65 year olds and 85 year olds rather than a blanket ‘old people’ response.
- The processes used for delivering personal budgets are more difficult than they need to be and that impacts badly on carers and on personal budget recipients.
Did this seriously need a survey over three months to discover? You could have asked me three years ago and I wouldn’t have charged consultancy fees.
- More work needs to be done to make direct payments more accessible generally but especially to older people.
This could have been written 6 years ago. We KNEW this from the roll-out of direct payments initially so why was NO WORK WHATSOEVER done around trying to work with more difficult to reach groups when personal budgets were being ‘piloted’. I really can say ‘I told you so’ as I begged our Personal Budgets roll-out team to allow us to pilot or be involved in the initial processes and they said our user group was ‘too complicated’. Heh.
- There is a need to simplify and clarify the rules and regulations surrounding personal budgets.
So those are the ‘implications’ and forgive me my cynicism. I love the idea of personalisation. I want it to work. I want to work in more creative ways or outsource my work if necessary to other third sector organisations but this is not ‘different’. This is not ‘new’. I fail to see the value of reports and surveys that tell us exactly what we already know again, and again and again instead of actively trying to work with people who actually understand and know what is happening ‘at the sharp end’ to try and work out ways to improve outcomes for those who are not receiving direct payments currently.
So back to the report – which used a Personal Budget Outcomes Evaluation Tool (POET)
in total, 1,114 personal budget holders completed the POET survey, including 832 returns from the 10 local authority demonstrator sites and returns from at least 76 other local authorities. 417 of these personal budget holders also wrote in a comment about their experience of personal budgets.
In total, 950 carers completed the POET survey,including 782 returns from carers in the 10 local authority demonstrator sites and returns from at least 66 other local authorities. 434 of these carers also wrote in a comment about the impact of personal budgets on their own lives
Almost half of people responding to the survey were aged 65 years or more (43%); the social care needs of working age adults (aged 16-64 years) were largely split between learning disabilities (17%), mental health needs (8%) and physical disabilities (25%).
I don’t want to play too many games with statistics but it would be interesting to know what proportion of people who meet the FACS criteria in total are over 65 and whether 43% is a proportionate figure in relation to total recipients of social care services. I think as well, to class ‘older adults’ as ‘over 65s’ is a little disingenuous although I know it is done because that is the basis on which statistics are given but it shows some of the ways that systems restrict and inhibit knowledge. It would be far more interesting to know the differences of take up of personal budgets between 65 year olds as opposed to 85 year olds for example.
And to some of the headline figures, that can catch the press attention – most people who receive personal budgets find there is a ‘positive effect’.
Looking through some of the figures, it seems that older people were much more likely to be receiving council managed budgets – you know, that ‘easy’ way of just switching around a bit of paperwork and making it look like there is now more ‘choice’ when in fact, the services and delivery is almost exactly as it was before the ‘change’.
As for the outcomes the report says
In terms of social care need groups, older adults tend to report less positive outcomes than other social care need groups in six out
of the 14 outcome domains
I find the report to be honest, a bit of a whitewash in itself. It is only accentuating the positives and like all discourse related to personalisation and personal budgets, seems to be going over all the same ground again and again.
People like choice, people like flexibility. Yes, and rabbits like to eat carrots. It doesn’t need a survey to tell me that. What action and money and research needs to be concentrated on is the HOW.
HOW is there going to be an improvement in service delivery to those who are marginalised in this process.
HOW are we going to wriggle out of the sham that is council-managed budgets while allowing those who need to have others to manage their budget and support their care to have the same access to quality care and personal assistants that those who are able to choose and decide have.
I’m rapidly coming round to the view that personal budget support planning needs to be moved out of the hands of local authorities who currently have no interest in the process except for meeting the government targets. Where is the innovation within local government for change? Sure there are people, and I hope to be able to count myself among them, who want to do a better job and provide a better service but the constraints of the type of job I am doing means that I can’t devote the time necessary to truly inclusive and supportive care planning so Mr G whose support plan I am writing up (he doesn’t want to be involved in the process as he ‘doesn’t like forms’ and can generally only tolerate conversations with people for between 5-10 mins maximum and that’s only if he’s known you for at least a year) does get a rushed service because I have to carry out Best Interests Assessments, do Mental Health Act Assessments, complete reviews and CPAs, liaise with other professionals, arrange discharges from hospital for other people. Yes, it’s a little bit of wallowing in self-pity and I wholly accept that. We are all busy but local authorities have no idea if they want a quality support plan without changing the ways of working in any other respect. Where is the time to devote to Mr G’s creative support plan? Oh, well, we’ll just do a regular care plan and a managed budget. Should it be that way? How has the march towards personalisation helped people like Mr G? Mr G wouldn’t complete a survey about a personal budget even if he did get a letter. Letters worry him and he doesn’t have a phone. I don’t want the Mr G’s that I work with to be forgotten in the rush towards direct payments.
When I first attended training we were told that any additional time we might be spending in our day to day work on these awful process-driven systems would be made up by the amount of time we would save by people completing their own support plans and assessments without any assistance. That may work for some people and I hope it does but for most of the people in the team in which I work it is unfeasible due to the amount of people I work with who have high support needs and who don’t have the capacity to make decisions about their own care needs.
The survey angered me, in a way that is probably irrational. Partly because it seemed to have taught us nothing at all. And partly because again, I see no new thoughts and ideas about developing systems that will be truly inclusive.
HOW can social care improve for everyone. That’s everyone. Even those who don’t want direct payments. Even those who don’t have advocates. Even those who are self-funding their own care packages as the criteria for receiving government support rise higher.
Those are the questions I want Think Local Act Personal to answer.
I have my own ideas. I think there will be a movement to roles for professional ‘support plan advisors’ who aren’t necessarily based in the local authority – perhaps individual social work consultancies but there has to be a separation between planning and delivery and the cost of these services shouldn’t need to be met out of the personal budget itself.
First and above all, there has to be a consistency and a transparency in the way resources are allocated and if necessary a weighting towards people who need assistance to access the same kinds of services who have been excluded from the process and the benefits in the past.
A survey of the skills-base of professionals who do implement support plans needs to be undertaken to establish what is needed and what is important to have.
Maybe it is a professional type qualification or maybe not. There is not much discussion about what the role of the social worker should be in the process. Should we be the ones support planning? I think there’s a argument that a social worker is well-placed to look at building plans together in conjunction with a user and family member if necessary and setting up things like trust funds or managed local authority budgets but only if the social worker is removed from the local authority talons. Maybe some kind of team of people with different kinds of experience and expertise working together with some background and training in non-directive advocacy for people who do lack the capacity to organise their own support plans. Perhaps the social worker or support worker in these new roles could have longer term relationships with the users and carers and wouldn’t feel so pressured by management if freed from the local authority reins.
But who is going to suggest and discuss the new ideas? Where do they go? Who will collate them?
While I see lots of discussions around me about personalisation, I see little that says anything other than it HAS to work because it is best for ‘people’.
I genuinely believe that is has potential to deliver a much better system but and this is a big but, there has to be more creativity and different kind of research that looks at new models and methods of delivery and consults people – yes, like me – who while being critical really really do want things to work better.
My criticism isn’t because I want to bury my head in the sand and ‘retain the reins of control’. I really don’t. I want to relinquish control but I want more than anything an equitable system that doesn’t fob off ‘more difficult’ service users with a second class service.
- Personal view of personal budgets (fightingmonsters.wordpress.com)
- Should private companies be looking after the elderly? (telegraph.co.uk)
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.
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
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.
Tags: bristol, care homes in bristol, Care Quality Commission, Commission for Social Care Inspection, csci, Home Care, local government, Local Government Ombudsman, nursing home, old age, Standard of care
I read on the BBC website among others that there is a report suggesting that care provided in the home by local authorities to older adults may be overlooking human rights issues.
An inquiry into this was initiated by the Equality and Human Rights Commission in November 2010 and will report in December 2011 but some interim findings have already been published.
I think the context in which the inquiry is taking place is crucial in times that Cameron trying to pretend that he invented the personalisation agenda and rebrand it as a version of ‘Big Society’.
The scope then of the Inquiry as to determine where the responsibility of the ‘public authority’ under the Human Rights Act actually lies and I’m going to quote directly from the EHRC (Equality and Human Rights Commission) as I think this is a crucially important point in the progress of personal budgets and home care provision (n.b. the underlining is my own).
The nature of social care is changing rapidly with a greater emphasis on personalised services and choice. The majority of social care services are already delivered by private sector agencies, either via contract with local authorities or directly with individuals through a mix of public and private funding.
This complex web of transactions is combined with a narrow judicial interpretation of the meaning of ‘public authority’ under the Human Rights Act. This combination has created a confused picture concerning the duties and obligations of the various groups involved in respecting, protecting and promoting human rights.
Further, an increasing number of care transactions are likely to take place at the margins of, or even outside of, regulated care. There is the possibility that these transactions are beyond the present human rights obligations of the State.
We are also seeing the emergence of new on-line care marketing and brokerage services aimed at people purchasing social care with either ‘individual budgets’ or private funds. These marketing and brokering services are currently completely outside of the regulatory system with no means of monitoring the quality of the advice and services they offer. The Government wants to accelerate the pace of reform even further. While personalised care and support has many potential benefits, this is uncharted territory. There are concerns that human rights protection (and other issues) could fall between the gaps.
I’m going to come back, I’m afraid, to my perennial bugbear of people who lack capacity to make choices regarding care provisions and care delivery and wonder again how this group of people without family members, friends or advocates will be able to secure their own well-being in a world where responsibility of the state and the public authority is being discharged to private individuals. Will it become the responsibility of an advocacy service to determine that the support package and the provider of the support package are of a good quality? Or the carer/family member? Hardly the same as a protection under the Human Rights Act.
Food for thought and while I am extremely happy with the forward march of personal budgets and direct payments to those who are able and happy to manage their own budgets, the way that local authority managed budgets provide ‘more of the same’ regarding cheaply bought, block contracted social care remains floating fairly close to the edge regarding what is acceptable and what isn’t.
My fear is that the roll-out of personal budgets has not led to choice for all. It is a false choice and a false impression of the so-called ‘success’ of the roll-out. It has led to great benefits and more choice for some, yes, but I worry that this is actually at the expense of those without the louder voices to shout who have, again, been pushed to the bottom of the pile when quality services are being distributed.
So back to the reports findings so far.
Back to the BBC report
The Commission describes cases of people being left in bed for 17 hours, or more, between care visits and a failure to wash people regularly.
It received reports of people being left in filthy nightwear and bedding after a homecare visit, or without a wash or hair wash for several weeks.
Visits are sometimes so brief, the report says, that people have to choose between having a cooked meal or a wash.
The short visits also mean that staff have to rush tasks like washing and dressing, which frustrates elderly people and care staff
That doesn’t even bat an eyelid with me. This is what I have dealt with for the years I have been working in adult social care. Complaints and apologies about the time we can allocate for specific tasks due to budgets. Apologies on behalf of private agencies who have block contracts that cannot assure any kind of continuity of care. That’s not even mentioning the missed visits, the non-payment to staff of travel costs so they are cutting short visits in order to make it to the next ones. This is the reality of social care for older adults in the UK. Not the ‘season tickets to football matches’, not the ‘let me choose nice Mrs Walters’ daughter who I know from church to be my home carer’ kind of idyll that we are presented in the personalisation literature.
The reality for the people I work with and for is increasingly rushed visits and yes, choosing between a cooked meal (but only if it is a microwave meal because there is never ever time to cook a meal more complicated than tinned soup or beans on toast from ‘scratch’) and a shower.
The way to solve this problem and promote dignity is to increase and not reduce budgets for social care in the home. But budgets are being cut and cut hard.
Local authorities use block contacts with private care agencies to save money. The private care agencies generally pay staff at minimum wage. There are some fantastic carers and some fantastic agencies but they are penalised if they don’t offer their services at the very very lowest cost.
As for personal budgets? It is a wonderful reality for some but for most of the people I work with and for, it is a pipe-dream for people with a different kind of disability and with different kinds of support needs from the ones which are mostly promoted in our training programmes and in our policy documents.
If the government truly and genuinely means what it says about increasing and drawing out the personalisation agenda and increasing personal budgets delivered by direct payments there have to be ways clear and research undertaken to help us to create protective and interactive systems for people who are not at the forefront of the march because they don’t realise how much they are being penalised for not having a family member who is able to help with choosing and designing a care package and because they are not able to do this for themselves.
There has to be money spent on developing ways to allow those who at the moment are most at risk of vulnerability to be protected and cared for.
There are so many problems with a society that treats older adults or, in fact, anyone in the way that older people who are in need of care are treated currently. No-one wants to address it because no-one wants to pay. And it will cost.
No-one wants to lose their homes. No-one wants to lose their savings. No-one wants to pay higher taxes. No-one wants to lose weekly bin collections. No-one wants to pay insurance premiums.
The people who hold the reins of power will never be subjected to the humiliations which become a part of daily life for older adults who have need of support that is provided because they’ll be able to buy in their own ‘help’ privately.
Older people in need of assistance are less noisy than younger adults and less emotive than children in poverty and need. Ultimately we shouldn’t ration compassion and there’s no need for a choice to need to be made between one group or another
In the roll out of direct payments and then personalisation and personal budgets, it is the more able younger adults who have led the march and those who have been setting the policy and agenda seem to have completely forgotten the group of older people who don’t have involved family members and who might not have the capacity to take decisions about care needs for themselves in the rush towards pushing the responsibility for support planning and choice of care routines. They have forgotten amid the wonderful stories of attending football matches instead of day centres that some peoples’ reality is more about choosing a microwave meal or a shower.
Until those issues are addressed and the protection of the most potentially vulnerable groups of people is managed, the new system will not be equitable and it will not be fair. But perhaps that suits this government that wants shift responsibility from the state to the individual – which is fine to an extent but there are some people who really need that protection.
I look forward to the final report of the EHRC in December.
- Should private companies be looking after the elderly? (telegraph.co.uk)
Posted in carer, carers, dementia, direct payments, Disability, discrimination, elderly, health, local authority, mental health, old age, older people, personal, personal budget, social care, social work, work
Tags: direct payments, ehrc, elderly home care, equality and human rights commission, government, Home Care, home care and human rights, Human Right, Human Rights and Liberties, human rights of older adults, individual budgets, local government, old age, personal budgets, personalisation, report into home care, social work
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)
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.
- Autistic man ‘let down’ by council (independent.co.uk)
- You: Local authority unlawfully detained autistic man (guardian.co.uk)
Tags: best interests, best interests assessment, bia, Court of Protection, imca, independent mental capacity advocate, local government, london, London Borough of Hillingdon, mark neary, Mental Capacity Act 2005, neary judgement, respite care, steven neary
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.
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.
Tags: abuse in residential care, adult protection, adult safeguarding, best interests assessment, bia, Care Quality Commission, deprivation of liberty safeguards, dols, health, MCA, mental capacity, mental capacity act, mental health, mental health legislation, nursing home, panorama, residential care, social services, social work, social worker, training, winterborne, winterbourne view