Castlebeck and CQC – Brief Thoughts

Paul Burstow MP addressing a Liberal Democrat ...

Image via Wikipedia

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

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

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

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

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

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

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

Light Touch Inspections, Winterbourne View and the CQC

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

As the article emphasises

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Goodbye Southern Cross, Hello Open Public Services

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

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

Or not.

Goodbye, Hello

m kasahara @ flickr

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

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

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

As the Independent says

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

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

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

At least the ‘Department of Health’ spokesman says

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

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

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

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

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

Firstly

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

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

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

Secondly

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

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

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

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

So much for my week of positivity!

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

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

Bristol waterfront at night

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And we aren’t.

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

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

Rant over.

Distractions and Uncertainty

Of Local Distractions

I met one of the hospital social workers earlier this week. We don’t actually catch up with each other very often but when we do we always make a point of hanging around in whatever corridor we bump into each other in and chat.

This time, we again commented on the ebb and flow of work which seems to be balancing on an almost perpetual ebb without much flow at the moment.

We are all on edge at the moment. Another reconfiguration is in the pipeline and so many rumours are abounding that it is making it very difficult to actually get very much done.  Announcements and decisions are in the offing and have been put back again and again so all we know is that ‘this is a big one’ and that some jobs are going.

Good place to leave it with us, management team!

Seriously I do wonder if any of the so-called management executives who are paid most highly with their years of skills of organising complex projects ever remember those very first baby steps in communication skills and ponder on the way that rumours spread when a team of people are bereft of actual facts.

So my kind of friend, the hospital social worker, filled me with a swathe of new rumours that I hadn’t heard before about how our jobs were going to be directly affected by these changes and in turn, I shared with him the hotch-potch rumours that I’d heard from another AMHP at a training session a couple of weeks ago who, although she is prone to hyperbole, still seemed to deliver a fairly gloomy outcome of what might happen to all our jobs.

We smile. We chuckle. We remind ourselves how complicit we are in spreading the uncertainty through these rumours. Then I return to the office and immediately tell everyone what I’ve just heard from my new source about the talk that is going around at the hospital. He, in turn, no doubt returns to his hospital team with the latest gossip in the ‘community teams’.

And in the meantime, of course, work goes on. The increasingly distressed calls. The organisation and co-ordination of assessments and the desperate attempts to make some kind of priority from the pieces of information that have been fed through to us.

This is life at the bottom of an organisation when the top is reorganising. This is the pit of the rumour mill where scraps of invented truths and fears are ground together and occasionally spit out nonsense but this is what we are talking about in the large open plan offices. This is what is happening while the government is talking about pumping more money into the NHS. This is what is happening when officials are prevaricating and making the policies that end up on intranet sites that we don’t have time to access and read.

And it made me think of Southern Cross – I’ve been thinking about Southern Cross a lot lately.

Of National Job Losses

The announcement of 3000 job cuts yesterday although, I suppose, unsurprising coming from a company that is in such severe financial straits. Considering that they have sold off their property assets, staff costs are likely to be one of their highest expenditures. I wonder how the staff employed today feel. I wonder how the residents who  might have built up relationships with staff members feel and I wonder how people who are about to make placements in care homes feel.

Am I less likely to place someone in a Southern Cross Care Home today? Yes.

The Independent states that

The jobs to be axed are expected to include over 300 nurses,1,275 care staff, almost 700 catering posts, 440 domestic jobs and 238 maintenance posts

They don’t sound very ‘back office’ to me. Although Southern Cross maintains that this will not affect quality of care provision, it rather makes you wonder what the staff were doing in that case.

Ideally, it would be useful to check the data from CQC inspection reports to see what the inspectors said about staffing. The difficulty is that publicly available inspection reports that are recent enough to give up to date evidence.

I decided to look at a few random Southern Cross inspection reports from the London area.  Professor Google spat out some results and this is by no means scientific as I didn’t have the time for a more extensive ‘study’.

Romford Grange? Good report in 2008. That seems in order. Of course 2008 is three years ago now. A long time between actual inspections but we know they are not actually going to do inspections so frequently now. Still, three years seems to be pushing it. Lots can change overnight, let alone in three years.

Tower Bridge Care Centre? Well, that had an inspection in 2010. Oh good, I think. But wait, that was only because there were concerns regarding medication management that had been raised specifically.

Another random check on Camberwell Green Care Home  – oh, an inspection in 2010, surely that’s a good sign? Silly me, the recent inspections seem only to be where there are problems identified. Here’s what the report says

The service has been performing poorly for some time and matters have not been addressed by Southern Cross.They have started to do that recently but that has lead to lots of staffing changes and a turbulent time including managers leaving quickly. The ship has been steadied by a management team who have been sent in to the home. This inspection has identified some of their successes but more work is needed and a key need is for a stable, consistent management team to be in place. Until such time we can only view the home as adequate

Care planning is not personalised and is not considering all areas of individuals need, therefore the care arrangements are not always well informed.
The complaint’s procedure needs to be improved, it has to be open and transparent with complainants feeling that they are listened to and that issues are acted upon. Communication too is not as good as it should be, all issues whether they are minor concerns or not must be addressed.
Despite staff receiving up to date training on Safeguarding Vulnerable people,
procedures are still not fully robust at the service.

Burgess Park? Oh, it had 4 inspections in 2010. That’s what I call exceptionally good monitoring. Ah, one look at the most recent report and you’ll see that it is because there are problems that there has been so many inspections.

For example, their April 2010 inspection report states that

Our observations of a lunchtime on the second day of the inspection showed us that the systems for shift planning need to be improved. We saw that one member of staff was the only person in the dining room where there were fifteen service users. They needed various degrees of assistance and we observed that the lack of staff caused difficulties for them An example was a service user who had to wait an unreasonably long time to be assisted to go to the WC; another service user fell asleep while waiting to be assisted to eat her meal.

and while the July report says that these issues have been ‘addressed’ and more staff were recruited, it does make you wonder where the cuts are going to come from.

Lauriston House? Home to 100 older and disabled  adults – last inspected in 2007.  In fact, a random glance at the ‘most recent available assessments to view’ tells a sorry tale.

Previous reports

  • Inspection report 2007/10/26
  • Inspection report 2006/09/06
  • Inspection report 2005/11/15
  • Inspection report 2005/08/05
  • Inspection report 2004/12/14
  • Inspection report 2004/06/29

Oh, it got a good report. In 2007. But for 100 people, that’s a pretty poor show. In fact, if anything is to tell the tale of the toothlessness of the CQC and the way that CSCI was heading prior to it’s inception – it’s that list of dates. Look on it, ministers and make a decision if that is the level of scrutiny and regulation you want to maintain?

Back to the job losses though. So what will that mean for today’s residents and staff? Uncertainty. Rumours. Whispering.

Whatever we say when we look back at what we can achieve and improve today for our own old age and for that of our children – we definitely can’t say we are living in uninteresting times.

CQC and Southern Cross – a retrospective

I’ve bemoaned both the changes in the CQC and the financial troubles of Southern Cross over the last few years since I started writing this blog.

For today, a bit of a ‘lazy post’ – I thought I’d collate all the posts that I’d made on those two subjects. It provides a little bit of context and stops me repeating myself.

Southern Cross

Trouble at Southern Cross (2/7/2008)

Active Care – Another Tale of Southern Cross? (16/8/2008  – READ THE COMMENTS!

Alton Centre, Active Care and Southern Cross – An Update (5/9/2008)

Southern Cross and Hillingdon (19/12//2008)

Frozen Reading (12/2/2009)

8 deaths – 10 days (26/2/2009) – oh the irony when I comment that Southern Cross own a lot of real estate.

The concerns and worries about the financial management of Southern Cross go back a long way. This is not ‘new’ news. The ‘new’ news is that the company is now close to the brink of collapse. There is almost an inevitability in this as those who sought to make a quick buck in the care sector realise that sometimes the figures don’t add up. Property doesn’t always pay. But making money on the back of what was a public monopoly (provision of care services) can lead to some rich pickings until some of that money needs to be spent. Corners are cut. Staff costs are cut. Older people are warehoused in increasingly larger residential and nursing homes while the roll-out of the so-called personalisation agenda rings very very hollow at the moment for those who are the most dependent and those who need long term care. Where this the personalisation within residential and nursing care services? Where are the small group homes with support for older adults with dementia? They don’t exist because they wouldn’t make a profit.

That is what those involved with personalisation need to address. Not how people who have capacity and ability to manage personal budgets or have families to help them will manage but how will personal budgets (health and social care) and personalisation help and create better systems for older adults in dementia nursing care. Give me an answer to these questions and I’ll have more faith.

CQC – Care Quality Commission

From the first day the CQC came into ‘being’

DoLs, IMHAs and the CQC (1/4/2009)  – these were all introduced on the same day. Do look at the quote from Barbara Young, the first Chair of the CQC. VERY telling.

Britain’s Homecare Scandal (10/4/2009) – another Panorama investigation.

Inspections (3/12/2009)

Can Gerry Robinson Fix Dementia Care Homes? (8/12/2009) – another TV programme.

Linford Park Nursing Home (3/8/2010)

Closing Care Homes (30/9/2010)

Lessons from the Care Sector (26/10/2010)

Trouble at the CQC (3/11/2010)

Johann Hari’s Manifesto for Change in Care Homes (26/1/2011) – one of which was ‘proper inspections’.

Scrutiny, CQC and ADASS (15/2/2011)

Excellence Ratings for Care Homes (1/3/2011)

Inspections and the CQC (11/3/2011)

Whistleblowing (7/4/2011)

Which Care? What Care? (19/4/2011)

Care Home Crises (16/5/2011)

So is this surprising? I wish it were.  I want to emphasise though that it is the management of the CQC that I feel is badly serving those who need support and care rather than the individual inspectors who I know have as many criticisms of the system as the rest of us do. How did this, or the last government allow regulation so toothless just as they are ratcheting up the OFSTED inspections? Does it say anything about how we, as a society, want to value or hide away adults with disabilities?  I suspect it does.

Winterbourne View – Where were the Deprivation of Liberty Safeguards?

One of the many things that have been concerning me since the Panorama programme about abuse within the Winterbourne View hospital for adults with learning disabilities was aired was the way that the safeguards implemented under the Mental Capacity Act were, or weren’t used.

Bearing in mind that a number of the patients/residents would have been formally detained under the Mental Health Act, that still leaves some that surely should/would/might have been subject to the Deprivation of Liberty Safeguards.

Law books 2

Eric E Johnson @ Flickr

On The Small Places, Lucy, in a fantastic post that breaks down a lot of the issues, writes on this matter stating

Undoubtedly everyone on that ward was deprived of their liberty, but were they detained under the provisions of the Mental Health Act, the Mental Capacity Act Deprivation of Liberty Safeguards, or just unlawfully detained?  It’s not a question that’s taken up, but from a legal perspective it’s very important.  If they were unlawfully detained, police should look at charges of false imprisonment on top of other charges relating to assaults and neglect.  If they were detained under the DoLS, who wrote the assessment that detention was in their best interests?  Did they place conditions upon the detention, and ensure they were upheld?  Was this assessment lawful, or should families be looking at issuing proceedings for unlawful detention against those who commissioned the care?

We don’t have answers to this question and I’m going to wander into the realms of supposition and guesswork with little apology, after all, I am no journalist.

I am going to presume that there was a poor use of the Deprivation of Liberty Safeguards – and I make this assumption based on the following grounds.

Firstly, there is a very poor understanding and implementation of Deprivation of Liberty Safeguards (DoLs).  I am a  practising Best Interests Assessor and a a social worker in a team that is primarily responsible for older adult. I go to a lot of residential and nursing homes. I go to a lot of hospitals. I observe and sometimes I assess. I have seen poor implementation and understanding in my own experience and can’t even begin to count the errors in the knowledge of the basic  tenets of the DoLs procedure that managing authorities (residential homes, nursing homes and hospitals) have. It’s a job to explain to colleagues as well.

This isn’t necessarily through lack of training, although sometimes it is merely about the speed of turnover – the staff that were trained are no longer in situ,  but it is also about a way that the safeguards are perceived. It’s also because all the training was done prior to the safeguards ‘going live’ to ensure the procedures were in place  but there have been changes through case law and through practice so professionals are lagging behind on the legal procedural knowledge and with training budgets cut, it can led to dangerous and unlawful practice.

Managing authorities are generally  (not exclusively) reluctant to trigger them because somehow they see it as bringing more attention to the ways the organisation operates or they see it as some kind of criticism for the way that they manage care. It may be or it may not be. If there is a deprivation of liberty there needs to be a legal framework in which it operates.

I’d venture to say that everyone at every level in every residential care facility needs to have an understanding and knowledge of the law and the way it relates to people who lack capacity to make certain decisions. I wonder what understanding those who assaulted patients in Winterbourne had of the law.

Any number of times  I have been told that a managing authority will request an authorisation after a review or when the social worker tells them to which, in itself, shows a misunderstanding of the legislation which requires immediate action and requests for assessments as soon as (or actually prior to) a deprivation of liberty takes place.

With the issue of the Deprivation of Liberty Safeguards and the Mental Capacity Act more generally come the role of advocates. Independent Mental Capacity Advocates have a statutory role within the Mental Capacity Act just as Independent Mental Health Advocates have a role under the Mental Health Act. Were there any advocates involved with the patients at Winterbourne? If so were they given the access which is allowed legally?

I genuinely believe that alongside criticism of the CQC which I will probably save for another post, it’s worth looking at the role of advocates and the potential that they could have to prevent abuse and to protect people who are vulnerable to abuse. I wonder if there should be a more robust system of advocacy in place (hint – yes, I think there should) to monitor placements from the basis of each resident. Cost? Why, yes, it would. And therein lies the rub but in any discussion of improvement, I think the role of an independent advocate looms large.

So why didn’t the Deprivation of Liberty Safeguards, safeguard the patients at Winterbourne View?

My own supposition is because they were completely ignored and not used.

What might a Best Interests Assessor have discovered that a CQC inspector couldn’t? Well, each resident affected would have had to be interviewed, as would staff members and family members. Deceptive staff members and frightened residents would still have been respectively deceptive and frightened but additional questioning and listening could have potentially led to a breakthrough. There would have been an examination of care plans and methods (although as we discussed in the office last week – any home can present a beautifully person centred care plan on paper – it’s a matter of implementation) and there would have potentially been a route in for more ‘relevant persons’ representatives’ to visit and ensure the well-being of the person being ‘deprived of their liberty’.

In a sense, I do wonder how many other ‘Winterbourne Views’ there are out there. I think while the culture of the organisations and the role of power needs to be examined, there also has to be an understanding of the law as it stands and whether safeguards were used  – if they were, why didn’t they safeguard? and if they weren’t (which is my suspicion) why weren’t they? Surely that is for the management (and the government agencies which monitor the legislation) to answer.