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.

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.

Note to Self

When clearing a day for a Best Interests Assessment under the Mental Capacity Act Deprivation of Liberty Safeguards –  even if you think you have planned and informed the hospital/care home well in advance, probably best to phone just before you head off to ensure that the patient/resident isn’t on leave when you turn up..

On the plus side, it’s probably looking like it might not be an actual deprivation of liberty as patient/resident can come and go apparently quite freely..  and it is in a rather pleasant part of London…

Looking Back – 2009

I was wondering how to finish the year off and mark it. So I looked at last year’s posts for inspiration to see how I marked the end of the last year. I ran a couple of posts – one looking back on the year in my first ‘proper’ year of blogging and another post looking at changes that had taken place professionally over the previous year of 2008 and another one looking forward to 2009.

I thought this year, I’d combine them into the same post and then, over the weekend, that will leave me time for the ‘looking forward’ post.

So as far as the blog has gone, I have definitely picked up readers over the past year and thank all of you visiting for that! Without doubt I have had more external distractions this year, with my father’s health fading and his death in August, to starting with the fostering  and now, the placement of our third foster child – so I have allowed myself a little more leeway with ‘days off’ than I did in the first year.

I installed a couple of extra widgets to track visitors and Clustrmaps tell me that by far and away most visitors come to me from the UK – unsurprisingly – followed by the United States, then Canada, Australia and then India.

But visitors have called from Libya, Sudan and Moldava – I can’t help wondering if they found what they were looking for!

Unsurprisingly the ‘About me’ and ‘Contact me’ pages are the most popular – probably because they have been constants however the Gerry Robinson posts come up pretty close which, considering the recentness of their posting, shows how many people were affected by the programmes made and wanted to find out more. The effect of the mainstream media is unsurprising and undeniable.

A quick run down on some search terms is always good for a giggle although I can’t beat some of Mental Nurse’s efforts as my most popular search terms have been, after the name of the blog, ‘angry face’, ‘general social care council’ and ‘good mental health’. Fairly expected, I think.

As for the next year, I definitely intend to read and discover more blogs, even if it means cutting down my own output a little as that’s an area that I haven’t concentrated on as much this year. Ideally, I’d like to produce better quality postings, less frequently, if necessary but retain the mix between commentary on social work, mental health and anecdotes from my working life with the occasional foray into personal thoughts.

And professionally, looking at 2008, I was reflecting on the changes to the Mental Health Act and the introduction of the Deprivation of Liberties Safeguards.

This year, it seems to have been about the Social Work Taskforce and coming in right at the end, the New Horizons paper on the future of Mental Health services in the UK. I expect both of these documents to have a major impact on the next year, at least, in a very real and immediate way. We have already had documents sent round about changes planned across the Trust as a result of the New Horizons proposals. I expect many changes before the year is out.

As for the Taskforce report, my expectations are that the impetus to change will come more slowly but I am comforted by the results published and am hopeful that there will be a blossoming in the development of social work in the UK. Ever hopeful, of course but as I was saying to a colleague just yesterday, whether you are an optimist or a pessimist, is unlikely to change the outcome, but if you are optimistic, you might have a more enjoyable experience along the way!

We have a general election coming this year – and a likely change of government, with different agendas and priorities, all in the climate of public sector cuts which are already affecting services. Interesting times.

The personal hopes for last year involved me aiming to start the Practice Education branch of my Higher Specialist Award and indeed, I have started that  now.  I have initiated my first couple of Individual budgets and although I retain a healthy dose of scepticism, I am committed to making sure all the concerns I have are raised and in order to do so I have to embrace the changes so that I can speak from a position of knowledge rather than stand on the sidelines and complain about changes in general.

I have noticed in myself that I have become more confident in my work and practice. I think that is something that grows incrementally each year but this year I felt more confident. I think that is partly due to the management and colleagues around me and the ethos that exists in my team which is very supportive.

I also resolved to try and become more active in both UNISON and BASW. While UNISON has been jettisoned a little bit, I have been more involved in a number of ways with BASW and have enjoyed the process of becoming more engaged with the profession on a wider basis than my office or my local authority. It has been heartening to see BASW become more vocal and confident and I am interested to see where that path lies.

I know the decade ends in 2011, but for my purposes, I’ll use this as a chance to look back too – although briefly – because in 2000, I qualified as a social worker. I find myself 10 years down the line. Partly I’m surprised I lasted this long – many of my colleagues on that MA (as it was then!) course that I attended have moved into different careers or away from front line practice.

I have worked in Community Care Teams, moving into Mental Health in 2006, nonewithstanding the ‘lost’ years I spent in Italy doing nothing related to social work  but which remain possibly the best thing I ever did and instilled a wealth of experiences that have shaped who and where I am now. Professionally, I worked though more statutory focus on carers and direct payments through to the initiation of individual budgets and the personalisation agenda. The Delayed Discharge Act which saw local authorities being charged for hospital stays if they were unable to facilitate discharges and what seems sometimes like over speedy discharges from hospital. I wonder how far that line will run. It seems that all policies are pointing to more care in the home and away from institutions.

I also  trained as one of the last ASWs (approved social workers) – in fact, I was the last ASW warranted in my borough – in July 2008 before moving straight into the ASW to AMHP (approved mental health professional) conversion training.

Without doubt that training has been the most significant to my professional development over the last decade. Seeing the beginning of the DoLs (Deprivation of Liberty Safeguards) process and the mess that seems to exist within what looks like frankly sloppy legislation and protocols and being able to recognise it as sloppy, will no doubt be one of the key parts of the legacies the decade leaves in my service area. The scope of the Mental Capacity Act still has a lot to encompass and needs a lot of padding out – probably by case law.

It’s easier to look forward one year than ten so I’ll duck out of decade predications until next year.. but as for the coming year, I’ll put something together over the next few days.

For now, there’s still another working day left of the year.. but Happy New Year to all and thanks again for visiting.

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The GJ judgement and DoLs

I’m coming back to Best Interests Assessments and DoLs for a while now so excuse my indulgence but it is something that has and is creeping back into my workload after a few ‘dormant’ months and a part of the reason has been the impact of the ‘GJ’ judgement which has been winging it’s way around various communication channels in our Trust.

I found a good summary of the GJ v Foundation Trust, PCT (Primary Care Trust) and Secretary of State for Health case in Family Law Week.

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It clarifies a lot of the questions that existed about the ‘eligibility’ assessment part of procedure to determine the authorisation or otherwise of a ‘deprivation of liberty’ under the framework of the Mental Capacity Act as opposed to the Mental Health Act.

When assessing people who are being deprived of their liberty and who lack capacity, in a hospital setting, the eligibility assessment has always been crucial. The eligibility assessment disbars the authorisation if the patient would otherwise meet the criteria of an assessment under the Mental Health Act.

I am aware that this may seem a little dry to those coming in from the ‘outside’ but it is absolutely fundamental to the legislation and the legislative tools that we engage with.

The situation of GJ, as highlighted in the case law, relates to himself, as a 65 year old man suffering from Korsakoff’s syndrome and vascular dementia as well as diabetes. His partner had assisted him in managing his diabetes prior to her death however following this, he had suffered from two hypoglycaemic attacks with obvious consequences for his physical health.

The discussion in the judgement published by the Court seems to centre around the question as to whether the treatment in hospital is on physical health grounds in which case, it would seem that a DoLs authorisation may be appropriate however if there is any part of the treatment process which relates to a mental health need, then GJ would move into the ‘ineligible’

The judgement summarises that there are two strands to this case – namely whether GJ is being detained and treated in hospital and thus being deprived of his liberty on the basis of his physical treatment regime and the only reason for this detention was on the basis of his ‘package of physical treatment’. In which case, he would not be a ‘mental health patient’ and an authorisation could be granted to deprive him of his liberty to receive this treatment under the Mental Capacity Act.

However, if the mental disorder existing were to be treated in a hospital setting, that seems that the eligibility requirement for the Mental Capacity Act would be ‘failed’ and the Mental Health Act assumes it’s primacy in this situation.

The other crucial point that can be gleaned from the judgement is as follows

58. In my judgment, the MHA 1983 has primacy in the sense that the relevant decision makers under both the MHA 1983 and the MCA should approach the questions they have to answer relating to the application of the MHA 1983 on the basis of an assumption that an alternative solution is not available under the MCA.

59. As appears later, in my view this does not mean that the two regimes are necessarily always mutually exclusive. But it does mean, as mentioned earlier, that it is not lawful for the medical practitioners referred to in ss.2 and 3 of the MHA 1983, decision makers under the MCA, treating doctors, social workers or anyone else to proceed on the basis that they can pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) that they consider render one regime preferable to the other in the circumstances of the given case.

So the Deprivation of Liberty Safeguards cannot be used as an alternative to use of the Mental Health Act as the eligibility criteria still need to be met in order for the assessments to continue. I’ve underlined for greater emphasis as much for my own benefit as anyone elses’ as I know personally of consultants who have favoured referring patients for the DoLs framework rather than using the Mental Health Act as it seems ‘least restrictive’ (an argument that doesn’t really exist in my view as the effect, namely someone being in hospital against their volition is the same in both regimes and in fact, there is a much more robust appeals procedure available under the Mental Health Act).

I’m sure there are many more qualified to sift through the case law which is coming from the Court of Protection, than I but it is a relevant judgement that has a significant impact on my work as a Best Interests Assessor and as an AMHP, eligibility assessor under the DoLs framework.

Revisiting Best Interests Assessments

Last week, I carried out a Best Interests Assessment for a man whom I had first assessed six months ago.   In fact, he was the first person I had assessed under the new Deprivation of Liberty Safeguards. I had, at that point, recommended that the Deprivation of Liberty that he was experiencing in the care home in which he was placed be authorised – and I recommended that the authorisation be for six months.

So I was asked back. It makes a lot of sense. Although it was one visit six months ago, I had, at that point, made contact with and discussed the situation with his family members, his care team and his CPN, as well as having a meeting with him directly.

I had made some recommendations the last time I visited but they were not binding conditions, just some aspects of his life that I thought might make a difference to the quality of his life and was pleased to see that these had been actioned almost immediately that I had left the previous time.

It is obvious to say, but it is much easier, reassessing than assessing the first time. Immediately on seeing him, it was obvious to me that he looked physically better, less troubled and agitated. Although I only see a snapshot, by conversation and discussion, that was the picture that was painted for me all around.

My initial choice of six months was because it just felt wrong to me to go for a full year authorisation – especially as I felt that there were a number of adjustments that could be made in the short-term.

In retrospect, I’m glad I did it. I’m glad I was able to go back and see things having improved.

Some aspects of the Deprivation of Liberties Safeguards are flawed, I think. We have not  had a lot of referrals coming in, certainly far less than were envisaged.

Partly I think this is due to the policy guidelines and thresholds being adjusted upwards to more narrowly define what a Deprivation of Liberty is.

I think it is also partly due to a reluctance of managing authorities to make referrals, perhaps seeing it as a criticism or a failing, instead of a positive.

I placed someone in a care home a couple of months ago and I felt immediately on placing her that the placement would be an unfortunate but necessary deprivation of liberty. I informed the home manager that I felt this was the case and recommended that she refer to the Supervisory Body. She was horrified and assured me that the resident was happy at the care home. It took a bit of nagging and the involvement of her IMCA (Independent Mental Capacity Advocate) to facilitate the Deprivation of Liberty Safeguards process but I wondered if her reaction was typical of home managers.

We have also had a number of requests for authorisations come from our psychiatric in-patient wards – particularly those for over 65s. A number of people who have been referred have failed the ‘eligibility’ part of the assessment process meaning that they meet the criteria for a Mental Health Act Assessment rather than the DoLs process.

If anything, it has led to more people being detained formally in hospital. I’m of the mind that this is no bad thing as the Mental Health Act has more robust appeals processes in place than the Mental Capacity Act and the DoLs process which has very weak appeals processes.

Then there is the sticky issue of the right to (free) care under Section 117 of the Mental Health Act – so if a person has been subject to Section 3 of the Mental Health Act, the authorities are responsible for paying for after care services. I should probably devote a whole post to this at some point. It has become a major issue in our Trust and most, I assume, as older people who might not have been formally admitted previously, are now entitled to free aftercare – often through placements – which is some of the most expensive aftercare possible.

I often ponder if people, in general, are aware of their rights to free aftercare but as I said, that’s probably another story for another day..

A knock-on effect of the new safeguards, locally, at least, seems to be that there are more formal admissions.

I’m not sure this was the way that things were ‘meant’ to work but lots of interesting issues being thrown up..

Drowning in Paper

I was on the ward yesterday morning. For a substantial chunk of time. Our borough had a rush of applications for assessments for authorisations of deprivation of liberty in the last few days in April. Just in time to take advantage of the extended April deadlines.  They came from the wards in the psychiatric hospital that cater for over 65s.

Going from training roughly 30 Best Interests Assessors, the actual number able and willing to carry out assessments has fallen to single figures. Some teams are claiming that until there is any acknowledgement and workload relief, they will not accept any assessments, some people didn’t actually pass the training course and need to resubmit and some people are refusing to complete any assessments until that are actually paid the additional money that was promised.

I didn’t know that there was a reason to object so have got on with the assessments I was given. Yesterday was my third. Hardly overwhelming – but it’s all time that could be spent doing ‘other things’. Isn’t that always the case?

So as I wandered onto the ward to meet the Mental Health Assessor at the prearranged time, I saw another social worker in the office locked in conversation with the independent doctor.

She was just completing her second best interests assessment and  the doctor had doubled up  and  very sensibly arranged the two Mental Health parts of the assessment for the same morning.

The amount of paper was unbelievable. These forms while not as scary as they seem at first, they are long and they are wordy.  There are tick boxes that account for all possible outcomes. So there are lots of pieces of paper with lots of choices. We had reams of paper scattered around in an attempt to organise these forms into some kind of order.

image anomalous4 at Flickr

The doctor commented about the sad death of all these trees. It really was, with all the forms scattered and trying to organise them, a veritable paper mountain.

I can’t help but think there must be a better way to have organised this. Electronic forms and tablet PCs, perhaps. I wouldn’t be loved for sugggesting it to a those of my colleagues who suffer from technofear and of course, some kind of electronic signature arrangement needs to be in place but the amount of pieces of paper was just mindboggling.

My colleague had a bit of a crisis when the Mental Health, Mental Capacity and Eligibility Forms all got mixed up into a kind of mass mess of papers. We used my ‘stapled’ blueprints to unravel them.

So anyone who is involved in these assessments, another lesson learnt – always staple your forms together before you go because the pages can look remarkably similar!

As for my assessment – I didn’t actually think there that the situation amounted to a deprivation of liberty for the person in question. Restrictions, yes – but not a deprivation.

That seems to have been the conclusion for a number of these applications which were made en masse.

At some point, I may well return to the distinctions between restrictions and deprivations of liberty –  but my brain needs a bit of recovery time..

Actually later  today someone that I care co-ordinate is being assessed. I spoke to the Best Interests Assessor yesterday. I was amazed that application had been made as I hadn’t considered that she was being deprived of her liberty – again, I’d had definitely said there was a restriction but not a deprivation.

Seeing as these referrals (and there were, I think about six) have all emanated from the same source, I foresee some additional training running from the DoLs office who have been having a little panic.