Risk, Capacity and Ethics


I know it gets a bit boring saying it but these last few weeks have been  busy. Ironically, bearing in mind what I have said about caseloads, the ramp-up in the disproportionate time available versus things to do ratio has been related to just one of my cases.

For obvious reasons, at this point, I can’t disclose too  many details but it will certainly be one of the ‘classic’ case studies that just about hits on all areas of practice including a hefty chunk of ‘ethical practice’ and what that may or may not mean.

This is a situation where I have worked from the basis of an assumption of capacity in regards to decisions being made, of course, in line with the context of the Mental Capacity Act. My judgement is not necessarily in line with other professionals and observers but ultimately, I am the ‘decision-maker’.

So, capacity is established. Even that is not clear-cut as I believe the individual has fluctuating capacity – as is not uncommon but the periods of lucidity allow the assumption to be made at those points.

And one of those ‘unwise’ decisions is being made. An unwise decision, we are told according to the Mental Capacity Act is central to our essence and choice as human beings with capacity and the making of an ‘unwise decision’ does not mean that someone does not have capacity.

So this is the perfectly acceptable and legally sound basis for the decision-making that I have taken.

We are given various examples of ‘unwise’ decisions on all the training we attend about the Mental Capacity Act. Often there is an element of humour in the training, you know, a man who might decide to spend his fortune on fast cars at the age of eighty rather than leave his money to his children and this is not a matter of capacity just because it is  not a ‘sensible’ decision. We all as an essence of our humanity take risks and make decisions that others might find ‘not very sensible’ but that doesn’t mean that we lack capacity.

It is a very important tenet.

The difficulty comes when firstly, there is not a necessarily clear-cut consensus that yes, this person is making a capacitous but unwise decision and secondly when there are risks attached.

Risk assessment is by it’s nature a tricky line to step. That’s the problem – if we knew all the facts, it would be simple.

I have been picking up lots of nervousness about this particular case because I think there was an expectation that the capacity assessment would go the other way – but the Act is clear about starting from an assumption of capacity.

I have spent an inordinate amount of non-work time worrying about the implications of the decisions being made. I went into work early one day after one of the ‘major’ decisions have been taken because this situation had been dwelling on my mind and I wanted to talk to someone about it.

I found my manager (who is always in early!) and ground her ear down a little about it. She was very good and patient with me as I explained my difficulties in separating the logical part of my brain where I am absolutely confident my practice is sound and I have acted in the way that is both in the best interests and respectful of the wishes of the service user – from the emotional part of my brain where I just want to be able to help more than we, as a service can offer or deliver in its current form.

I chuckled as I asked her, kind of jokingly, if she’d back me up in front of the GSCC if things didn’t go as we hope they will. She, of course, told me to stop being silly and that had I done anything more restrictive or authoritarian than she would have been truly upset with me. But in a way, that’s the ‘easy’ route – that’s the ‘safe’ route. When we talk about risk management and risk aversion, I can see the benefits and as a professional who does wield power to make decisions about peoples’ lives – that power unnerves me. I can see how easy it is to err on the side of caution.

A part of it is that I feel that although I can be clear that personally, I am taking the path which I am strong about, I feel that the service as a whole is not providing exactly what this person wants and needs and should have – because the needs are quite specialised and specific.

This should be exactly where ‘individual budgets’ can come into their own but the processes don’t always allow for people who are outside the ‘norm’. This is very far from a straightforward – ‘give a man a budget and let him plan’ that neatly fits the agenda of the individual budget. As I have discovered – although it isn’t really discovery as I knew this all along – it is hard to do anything quickly when you are wading through a swathe of largely unnecessary forms. It is hard to present some truly innovative systems and proposals when the system only permits choice to a certain degree.

As a practice assessor/teacher in the workplace, my last student often asked me about ‘ethical dilemmas’ as it was one of their competencies. I jokingly said that ethical dilemmas were a key part of the job as anything involving control had to be and when we cease seeing our power and influence as a part of that ‘ethics’ dichotomy, we take for granted the decisions we make and the power we have – we become dangerous practitioners.

We had a module on ‘ethics’ as a part of my Masters in Social Work but I also have a BA in Philosophy. I used to laugh about it and often do still. You know, the jokes about unemployed philosophy graduates and all that. To be honest, often they are fair.

But more than ever I am glad of the firm grounding I when I studied Philosophy as an undergraduate. Ethics – studied in far greater depth over the years of the initial degree, which seemed such a inately impractical course has bloomed into life.

Logic with it’s quasi-mathematical formulae has led me and directed my thinking in ways that I might not have been equipped to do otherwise.

I wonder, if, in retrospect, the first degree in Philosophy has aided my self-reflection and my skills as a social worker.

I remember when I applied for the Masters and the preference was for social sciences and I worried that people who had studied Social Policy would be better considered.

Now, I think Philosophy was the best grounding I could possibly have had. After all, doesn’t applied philosophy just about cover everything we do?