On Capacity and Deprivation of Liberty

Having been a Best Interests Assessor since the position came into being, I have a particular interest in how the deprivation of liberty safeguards (DoLS) work (or don’t) in practice. I am a fan of the Mental Capacity Act (2005) to the point of becoming quite defensive in the face of opposition to it. This is because having worked in older adults services (and more specifically in dementia services) since before the Act came into force, I’ve seen the big changes that it has made in codifying and protecting the rights of people who may lack capacity to make specific decisions at certain times in their lives.

What was a previous reliance on ‘common law’ principles of professionals/family members making decisions which were more often than not ‘in people’s best interests’ changed to become codified and provide protections to people who are in these situation where no specific legal reference existed before. While the ‘Daily Mail’ crowd grumble about decisions being made by ‘shady secret courts’ or even shadier ‘professionals’, the reality is that for decisions to be made on behalf of people, all those involved including family members and professionals where necessary, should decide together what is in someone’s best interest on the basis of previous wishes where they are not able to explain. The legislation and code of practice sets out, what was lacking before, in terms of expectations (nay, demands) of involvement and the responsibilities for decisions about capacity to be made by the most ‘appropriate person’.

Criticisms come, of the Mental Capacity Act (2005) through the Deprivation of Liberty Safeguards. I have written before about them here as I’ve been involved in making decisions and carrying out assessments. There is no doubt that the system in place is flawed. We identified some of the flaws when we did the training before the provisions came into force. Subsequent case law has not always been helpful. In the light of the CQC report published this week about the use of Deprivation of Liberty Safeguards, I thought it would be useful to reflect on some of my personal experiences of using them and observing others using (or not using them) rather than look through the report which others do far better than I would be able to.

The Deprivation of Liberty Safeguards (DoLS) were intended to provide a level of protection to people who lacked capacity to make decision about care and treatment either in hospitals or care homes, regarding situations when they were being deprived of their liberty and therefore had no recourse to any appeal process – unlike, for example, people who are detained under the Mental Health Act (1983) who have access to a tribunal system. Deprivation of Liberty Safeguards have their own Code of Practice (which is useful but got out of date rapidly in the face of changing case law). There are particular processes required for an authorisation to be made (by the supervisory body – which is the local authority) and it is based on assessments made by two people. One is a Best Interests Assessor (which was the role I took) and the other is the Mental Health Assessor (who  is a doctor with special training although I wouldn’t lay too much confidence in the ‘special training’ as I’ve known it to be as little as a day). Having attended some joint training with Mental Health Assessors, I have to say, I wasn’t inspired with a great deal of confidence about some of the understanding of the processes but perhaps that’s changed in the year since I’ve practiced.

Problems with DoLS

One of the main problems I see with DoLS is that people are told ‘They are complicated’ and that seems to act as a disincentive for managing authorities (the care homes or the hospitals who may be depriving people of their liberty) to actually think about them too much.  Or staff who work in these areas think they are ‘someone elses’ business. I’ve come across that before – hospitals who have one DoLS/MCA lead who is seen as the only person who needs to know about them. I would say that’s possibly not the most helpful way to think about it. As long as people think they are complicated, they will ignore them in the face of busy work environments.

I try to tell people, when and if they are interested, that everyone doesn’t need to know the intricacies of whether a particular practice is a deprivation or a restriction before making a referral – it is the job of the Best Interests Assessor to make that call as a part of the Best Interests Assessment and it is something that will depend, very much, on the individual circumstances of an individual person. What is important though, is that staff can identify some key issues that may come up that could trigger a referral at the very least. If staff are to be provided with such a list by their employers (which I’ve seen) then at least those employers should ensure that they update this checklist frequently in line with case law and they emphasise that it is not exhaustive. As frontline practitioners, we talk about hating check box lists. This is exactly an area where a check box list is supremely unhelpful unless it is changed frequently and concerns strong provisos – allowing some professional judgement.

The name is a bar too, of course. Deprivation of Liberty Safeguards – people seem to concentrate on the deprivation part and ignore the safeguards bit so they are seen negatively. Actually, it’s a way of protecting the person whose liberty is being deprived and without the safeguards they would not have the same level of protection. When I see the Mail/Express headlines like this we can see the danger of misinterpretation of the language. I don’t believe for a  moment we have ‘more people subject to chemical cosh’ or ‘older people being tied up’ or ‘people denied from seeing their relatives’ than we did 10/20 years ago. We just have more understanding of when it’s happening and some of those people have had specific assessments to determine whether it’s in their best interests – where before it would just be a decision made without those safeguards.  The language is troubling to tabloid news journalists who don’t look beyond the ‘deprivation’ word. Mind, it’s not just tabloid journalists – it’s care home managers who see it as a ‘bad thing’ if they make an application. Personally, I’d be delighted to see more referrals drip through as it means that there’s a possibility that some people will have access to the protections.

Some people want a list of things that are a ‘deprivation’ and what isn’t. The lack of such a list leads to an ‘it’s complicated’ charge. The reason there isn’t a list is what may be a deprivation of liberty to me, might not be to you. I’m generally quite a solitary person and am quite happy spending a day pottering around at home, doing not very much. My partner needs to go to the supermarket every day to get fresh fruit and vegetables. He will not buy fruit or veg a day in advance and doesn’t believe in weekly shopping (this is sometimes an issue between us!). Not allowing him out of the home (if we both lived in a care home) would have a far greater impact on his liberty than it would on mine because of our usual habitual behaviours. Whereas keeping me away from a television for more than a day would have a big impact on me but wouldn’t bother him in the slightest. Silly examples but it’s the reason we can’t make blanket decisions or say ‘locked doors = DoLS application”.

The interface between DoLS and the Mental Health Act (1983) is a particular bone of contention – in my experience. Having worked in older adults’ mental health services, I saw many situations on older adults inpatient wards where, if someone wasn’t battering down the door and actively attempting to leave at any opportunity, they were deemed to ‘comply’ with the detention without the need of any of those awkward legal-type powers. Unfortunately I haven’t seen a great deal of progress in this and some psychiatrists seem to dislike using the Mental Health Act (1983) to detain people who lack the capacity to consent to treatment/admission. DoLS does allow, potentially, another avenue although case law has been quite fluid in terms of where we stand. What I’ve seen FAR more of is a lack of use of either Mental Health Act or the Mental Capacity Act and somehow thinking that ‘informal admission’ is the ‘right’ answer if someone isn’t battering the door. Sometimes opposition to a detention can take other forms – increased levels of distress, lack of engagement with staff/family but I fear there is little flexibility in interpreting the ‘objecting’ patient when people are not actively saying ‘I want to go home’ every second – and even sometimes when they are ‘Oh, they are just like that’ or ‘that’s the dementia talking’.  The thing is, this needs to be challenged and sometimes hierarchies within hospital systems don’t allow it. This is why I think the BIA role is crucial and that hospitals, in particular, should engage with genuine understanding of DoLS and what their actual purpose is rather than assuming they know.

I have a slight problem with the assumption that the Mental Capacity Act is ‘less restrictive’ than the Mental Health Act. To the person who lacks capacity to consent to treatment or a hospital admission – they are being kept in a place they don’t want to be and treated against their will regardless what legal framework (or none) they are subject to. The Mental Health Act offers more and better appeals processes (and more automatic checks – and of course, although this shouldn’t be an issue, the right to s117 aftercare) than the Mental Capacity Act so saying that DoLS offers a least restrictive alternative, is, I think, (whether judges agree with me or not) a false premise. One thing is for sure, there needs to be SOME legal framework and having none, certainly isn’t the least restrictive alternative.

What would work better?

I think there needs to be a streamlining of the DoLS process – perhaps more along the lines of the Mental Health Act which is better developed – certainly in terms of rights to advocacy for all and a similar type tribunal system. There needs to be much better understanding of the processes and what RIGHTS mean to people who lack capacity to make decisions. Local authorities need to provide better information and access to advocates all the way through the process – they are supposed to but it sometimes gets lost down the line.

CQC need to actually inspect and enforce when organisations are not telling them and they need to understand the processes better to judge organisations against what they should be doing.

Changing the name would help too, something about protecting rights not depriving of liberty – perhaps that’s a bit flippant but language is important.

Everyone within organisations needs a better understanding of them from care workers/health care assistants to consultant psychiatrists who seem to regard them as an optional extra if they can’t be bothered to use the Mental Health Act because ‘they don’t do that’ when people lack the capacity object in the only way that they can recognise.

These aren’t new now and they aren’t optional but too many organisations seem to write them off as ‘too complicated’. Too many supervisory bodies seem to ‘pre-screen’ referrals. There are too many discrepancies nationally to think that they are anywhere close to being embedded in our health and social care systems (despite CQC’s positivity on this).

We need access to clear information including current case law in a central space – perhaps the Department of Health can offer up some space – in easy to read language which explains rather than complicates.

I’m sure there’s far more than needs to be done. I don’t have all the answers – not by any means, but I do know we all, who have any interest in this sector, need to do a whole lot better and understand what the current law is. These safeguards aren’t an optional extra and just nice for people to understand a bit better. They are the current law and the current law is failing for as long as no one is actually checking or caring whether they are used properly or not.

On Kindness and Compassion

This weekend, I’ve been reflecting a lot on kindness and the way it impacts on my job. On Friday,  I had a conversation with someone I work with (in a different organisation) in which they demonstrated a level of kindness towards me that I was not expecting in the context of our previous conversations and professional relationship. It surprised me. They could have dealt with the situation in many different ways, as could I, but the kindness took me aback and I’ve been thinking about it ever since.

We hear a lot about the need for compassion in health and social care. There has been a ‘lack of compassion’. After the Francis Report publication, organisations within the NHS but on a broader level have been asking about whether there has been a deficit of compassion shown in services. I’m far from convinced of it. Cruelty happens. Neglect happens. Organisations develop toxic cultures. Does that mean there is a general lack of compassion by staff who do their jobs on a day to day basis? I don’t think so. I’m also confused by the language that is used.

I like to think I’m a kind, compassionate person. I try to be. I wonder though, what kindness/compassion is in the role that I have and have had and whether they are the same thing. Wikipedia tells me

English noun compassion, meaning to suffer together with, comes from Latin. Its prefix com- comes directly from com, an archaic version of the Latin preposition and affix cum (= with); the -passion segment is derived from passus, past participle of the deponent verb patois, patī, passus sum.

Whereas kindness is again, according to Wikipedia

a behavior marked by ethical characteristics, a pleasant disposition, and concern for others. It is known as a virtue, and recognized as a value in many cultures and religions (see ethics in religion). Research has shown that acts of kindness does not only benefit receivers of the kind act, but also the giver, as a result of the release of neurotransmitters responsible for feelings of contentment and relaxation when such acts are committed

Would we rather, on these definitions, that someone treat us with kindness or compassion? Personally, I’d go for the first. I have no desire for someone else to feel my pain or suffer with or alongside me. When I was working with people on a daily basis, we used the rule of thumb about treating people as you would like to be treated or as you would like a member of your family to be treated. As a simple baseline, it’s a good start and it’s easy to understand but perhaps we need to look beyond the self and beyond the ‘compassion’ which is about putting yourself in other people’s shoes or imagining they are in your shoes, and thinking how we treat people to create a better, more caring, kinder society as a whole. Compassion, perhaps, is about the individual but kindness can be broadened out to a wider group of people that we might not ‘feel’ for.

If we are looking at the word, compassion and compassionate in terms of the care I delivered when I was in a social work role, I’d like to think that I regarded everyone I worked with respect and kindness. Was I always able to feel their difficulties and suffer with them? I hope not as it would have burnt me out far earlier but I think I did my job well and tried to remember that I was in the position of power that flitted in and out of the lives of others having significant influence on their wellbeing and making fundamental decisions which I never took lightly. However, I had bad days too. I remember one time when I was annoyed with someone whom I was working with. It was a family member of a man I was working with and they had acted in a way that I thought had not been helpful. I remember actively biting my tongue and being short with them. I returned to the office and had a long chat with my manager. I phoned them and apologised. I was not compassionate. I was not kind. I don’t think it made me a bad person but gives us an awareness that people who see themselves as compassionate (however that’s defined in the context) can act in ways that aren’t. Does that mean the system is broken or that the people in the systems are human and have good days and bad days? Of course, cruelty and neglect are not ‘bad day’ things but I have never come across anyone working in health and social care who has not considered themselves ‘compassionate’ or ‘kind’ but sometimes that isn’t necessarily what I have seen in their actions.

So telling people to ‘be more compassionate’ doesn’t work. Telling people to ‘think more’, doesn’t work because we all think, to a large extent that we are doing our best.

Teaching Compassion

I’m far from convinced that organisations need to buy in external agencies to ‘teach compassion’. My gut feeling is that there is something of the snake oil salesman approach to those who peddle the ability to ‘teach’ organisations how to be compassionate. It’s not rocket science, as we like to say. I don’t think anyone (apart from the few who fall into the ‘cruel’ group for which no teaching will work) believe we are not kind or don’t want to be kind. We need space to develop kindness and in my view that comes through reflection. Just as I’ve spent a day or so, reflecting on a very simple act of kindness towards me, it has led me to think about how I can be kinder, in unexpected ways, to and with those people and organisations I work with. So one act towards me has had a ripple effect. Similarly others, if they have that space, can think about how they have been influenced by kindness and thought from others in professional and personal settings and how that can be passed on.

Are organisations needing to buy in external consultancy firms to do this? I hope not. My hope is that any organisation in this ‘trade’ has sufficient professional expertise to grow their own reflective practice. It’s far cheaper and more productive to ask your own staff what would help them than getting a consultancy in to tick the ‘done compassion training’ box and tell them. I’d have far more confidence in any organisation that sourced the space and time to embed reflective practice over one that bought in a firm and got 100% compliance with ‘compassion training’.  The key is that kindness and thoughtfulness start at Board level. If staff feel engaged with an organisation and a part of it, they want to do their best – sometimes they do, even if they don’t feel connected but it’s better for everyone if we do.

Kindness needs to drip down. Focusing on value based recruitment for health care assistants is great. Blaming health care assistants for all the problems in organisations when a lack of compassion has been identified is not. Staff treat people how they are treated. I’ve worked in different organisations and seen that those that have the best cultures are the ones that have most visible and responsive leaderships. Then the rest will follow. Staff teams that are well-led will filter out the team members who are less thoughtful in their approaches. Those that are poorly led will embed poor practice and culture. It doesn’t need any fancy training sessions to ‘teach’ that. It just needs, in my opinion, thought and time to reflect.

Reflection

I’m aware that I can sound like a broken record at times, but fundamentally, I think the gap that is perceived to exist in kindness and care can be solved through reflective practice. The problem comes with the space that is given for individual staff members and organisations to reflect and the value given to it within the world that is driven by cuts and outputs. To ignore the need for reflection and consideration though, leaves individual practitioners and organisations at a far higher risk of delivering care that is thoughtless. The wellbeing of staff knocks on directly to the wellbeing of patients or people who receiving services from an organisation. A stressed and anxious social worker will by less effective, less kind, perhaps, than one who feels that they are a part of an organisation that shares their values. I know it’s easier said than done. In my previous team, we took time to talk through cases with each other, even when we were at our busiest because it made us stop – and think – about what we were doing and the impact that it had. The skills we learn to reflect and reflect well and often are imperative to good and safe systems. Reflection should also allow space to challenge practices within organisations which are faulty or unkind. We need to look after ourselves as practitioners and we need to demand it from our employers if they do not provide it.

Kindness

So back to the initial kindness that was shown towards me. It made me realise what a difference it can make especially when it comes from an unexpected source. In my theme of hope for the new year, I think that I’m going to try and be kinder, if I can, for as much as I can, to those I work with and around. While kindness cannot solve the financial difficulties the sector finds itself it, it might be able to make the work environment more pleasant and more caring for those who use the services proved  but also for those who work within them, at all levels.