Weekly Social Work Links 14

I know, not quite weekly as I was away last weekend and I’m off for the Easter break so I’m starting the long weekend with a few links from the last couple of weeks.

The Masked AMHP continues his series about Mental Health Tribunals with a post about nearest relatives and their roles in the process.

Dorlee at Social Work Career Development has a great post about ‘termination in therapy’. I still find ‘closure’ quite difficult so it was interesting reading about her reflections on this vitally important process.

SocialJerk writes a very touching piece looking back at someone she has worked with and still thinks about. I do that quite a lot as well.

Melinda Lewis in Capitol to Classroom shares her best career advice.

Nancy Smyth has a great post about skills for the digital age and how we need to adapt.

How not to do Social Work looks at ‘low risk’ placements and foster care. How risk is determined can affect the rest of a child’s life.

Social Worker in the South reflects on liking her job and being exactly where she is. I am fortunate enough to feel the same.

Mel at My Skim Cap writes about the ‘when people become numbers’ and hospital discharges. Some things are the same all over the world.

LCSW Mom at Just When I Think I’ve Seen it All writes a thoughtful post about a death.

Diary of a Social Worker writes about the public perception of social workers

Chris Mill’s Child Protection Blog looks at the increase in calls reported to children’s helplines.

Shirley Ayres has written about the ‘must attend’ social work conference this year on 4th July at the Institute of Psychiatry in London. Looks really good. Would love to go but there’s no external training budget. Anyone want to sponsor me? Smile   (free places for service users/carers/unwaged)

On ‘A Social Workers View’ S. Wangene talks about the beauty of the night sky and noticing it. Speaking of which she has had a lovely redesign of her blog. Go and look!

Ladybird writes about some of the difficulties of writing anonymously and not writing what you want to share sometimes. Oh, I feel that pain!

My last post for the week is not from a social worker but it relates directly to my practice and is a fantastic post about whether the Deprivation of Liberties Safeguards are compliant with Article 5 of the European Convention of Human Rights. OK, it might have quite a specialist audience but Lucy’s blog is an absolute must-read for anyone working with the Mental Capacity Act and Mental Health Act in the UK.

I’m away now for the Easter break. I can’t promise there won’t be any posts at all as sometimes I can’t resist but certainly any posting will be less frequent for the next week.

So happy Easter/Spring!

Deprivation of Liberty Safeguards – a few thoughts

I’ve written about the Deprivation of Liberty Safeguards (aka DoLs)  and Best Interests Assessments before but the last time I touched on them in detail was a back in 2009 when I looked at some of the initial assessments I had done.

Now, almost two years down the line, there is a slightly better understanding of the process and it is something I’ve been asked specifically about so I thought I’d run through a few thoughts on the issue.

The Deprivation of Liberty Safeguards were introduced as a part of the Mental Capacity Act 2005 and ‘went live’ in April 2009.

They were introduced as the government’s response to a European Court ruling on the HL v Bournewood case. The details are in the link but very very basically, it involved a man who was an informal patient at the Bournewood Hospital and the illegality under the European Convention of Human Rights, to be deprived of his liberty in ‘informally’.

Article 5(4) of the European Convention of Human Rights – now (and since the incident at Bournewood) incorporated into UK law as the Human Rights Act 1998 – states that

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Article 5 is a limited rather than universal right – meaning that  had HL been held under the Mental Health Act this would not have applied (and in any case, he would have had the right of appeal through the tribunal process). However as an informal patient he had no such right.

The Deprivation of Liberty Safeguards were an attempt to bridge the so-called ‘Bournewood Gap’ so that there was a legal framework which applies to people who are detained without consent and capacity and who are being deprived of their liberty and who are not subject to the Mental Health Act.

The process of identifying a Deprivation of Liberty falls on what is the ‘management authority’. This would be the care home or the hospital. Deprivations of Liberty must be instigated by a ‘public authority’ so this law does not apply to private homes or supported housing.

One of the biggest dilemmas for someone involved in the process is deciphering what a ‘deprivation of liberty’ actually is. There is little guidance and a little case law.

I tend to refer back to the Deprivation of Liberty Safeguards Code of Practice which attempts to give some examples. For me, the important thing to consider (as one of the ‘assessments’ I complete as a Best Interests Assessor involves establishing if a Deprivation of Liberty actually exists) is the difference between a restriction of liberty and a deprivation of liberty – one of which is liable to the legal framework and the other not. Chapter Two of the DoLs Code of Practice is useful in identifying some of the main issues to be aware of but as it emphasises each decision is unique in the way it plays out for that individual.

Incidentally – for those who were asking about the locked doors and keypads to ‘keep residents/patients’ in in residential homes and hospitals – this is dealt with in the Code of Practice. The existence of the locks themselves would not alone be a deprivation of liberty but there may be deprivations due to cumulative effects of ‘full and effective control’ by care staff or nurses on someone’s activities or by the degree and intensity of other co-existing controls.

Jones as well, in his commentary in the Mental Capacity Act Manual gives some examples of differentiation between restrictions and deprivations of liberty. This is something that we frequently discuss when we, as Best Interests Assessors meet and share practice and experience. Two people may not make the same judgement as to whether there is a deprivation or not.

So if the managing authority believes there to be a (or that there will be)  Deprivation of Liberty – they request an authorisation. These can either be urgent or standard. They can allow themselves a few days if they see an immediate deprivation of liberty but they have to apply for a standard authorisation in the meantime which means the full assessments.

The managing authority asks the supervisory body (Local authority for care homes and PCT for hospitals) for an authorisation of the deprivation of liberty. The supervisory body arranges the assessment.

There are six assessments. Usually they are done by two individuals – they have to be done by at least two although more can be involved, I’ve never known it. The reason there have to be two is that the Mental Health Assessment has to be done by a different person to the one who does the Best Interests Assessment. The other assessments are usually done by one or the other of those assessors.

Neither assessment can be done by anyone involved in the care of the individual being assessed – although they can be done by people who are employed by the local authority/PCT etc who has asked fro the assessment.

Age Assessment – is the person over 18?  Seriously, that’s it. I quite like this one. It’s very straightforward. Particularly in older adults services.

No refusals – Advance decisions or decisions made by legal deputies or donees and lodged with the Court of Protection apply to treatment and care decisions under the Mental Capacity Act.  The wishes of the deputy or donee or the individual if they have made an advanced direction, remain valid and would supersede any Deprivation of Liberty order made.  Again, this is usually conducted by the Best Interests Assessor

Mental Capacity Assessment – The Deprivation of Liberty Safeguards only apply to people who lack the capacity to make decisions about their care needs and/or placement of treatment. This would be done in the same way that capacity decisions are made in other areas – starting from the base of an assumption of capacity. The Mental Health Assessor or the Best Interests Assessor can do this.

Mental Health Assessment – Any person that this applies to has to be have some kind of ‘disorder or impairment of the mind’ as defined in Section 1 of the Mental Health Act. The assessor must be a doctor with additional training completed. The assessment must take into account how that person’s mental health may be affected by the proposed deprivation of liberty.

Eligibility Assessment – if someone is subject to detention under the Mental Health Act or may meet the criteria for detention under the Mental Health Act they are not eligible for an authorisation of a deprivation of liberty. This assessment must be completed by a suitably trained doctor (s12 doctor) or an AMHP – because the assessor has to be familiar with the Mental Health Act.

Best Interests Assessment – this has to be carried out by someone who is registered as an AMHP, a social worker, an occupational therapist or a chartered psychologist who has more than two years post-qualifying experience and has undertaken additional training specifically for this purpose. They would be ‘approved’ by the supervisory body on an annual basis.

They must determine whether there is a deprivation of liberty existing and also if it is in that person’s best interest and/or if there is any less restrictive option that could be taken.  It can be a lengthy process and always involves family members, care staff/nursing staff, contacting anyone with any involvement with that person to get significant background information etc.  There are some situations in which an IMCA (Independent Mental Capacity Advocate) has to be employed.

If a decision is made to authorise a deprivation of liberty, the person to whom that refers has a ‘representative’ who would have the right to appeal. The representative is appointed by the supervisory body. Usually it is a relative but if there are no relatives, the supervisory body would employ an IMCA in that role.

Chapter 7 of the DoLs Code of Practice gives guidance about the role of the representative.

For me while understanding it is a protection for someone who may be deprived of their liberty, the actual process is remarkably (although unsurprising clunky). The paperwork (in England, at least) is a horrific mash up of tick boxes that seem to lend themselves to repetitiveness. Assessments I have completed as a Best Interests Assessor are generally very interesting as I quite enjoy the process of trying to find out as much about a person as possible and digging around for information, the forms suck any interest in the process straight out of my every pore.

Personally, I think the whole process could have been better thought through. The ‘review’ and ‘appeal’  are much less accessible than the Mental Health tribunal systems which are in place and in my mind, there is less protection under the DoLs framework when compared to the protections under the Mental Health Act.

Relying on managing authorities (residential and nursing homes and hospitals) to identify there own deprivations of liberty has led to some unusual interpretation of the law. Particularly as they are reluctant to refer as they can feel that there is an implied criticism.

I  have  no doubt whatsoever there are many many of these deprivations of liberty that exist and are not referred.

Usually, you’d think the CQC might pick them up on inspection but the CQC don’t seem to inspect any more.

Has it actually helped practice? I’m not sure.

Generally, I’m a great fan of the Mental Capacity Act but this part of it I have many reservations about. I think it was actually poorly drafted and no-one thought through the practicalities before implementation but it isn’t going anywhere so we might as well deal with it.

For further reading, I’d definitely recommend the

Deprivation of Liberty Safeguards Code of Practice – it’s remarkably easy reading for a government document. And it’s free to download.

Jones Mental Capacity Act Manual – has the text of the Act and some useful commentary.

The Mental Capacity Act 2005  –  A Guide for Practice (actually, I don’t have this book, but I have the previous edition which has been very useful for putting the some more difficult concepts into easier to manage forms – and I’m a great fan of Robert Brown’s books so I would happily recommend it even though I haven’t read it!).

Assessing Best Interests – Part 3

After some days back at work, the taught part of the Best Interests Assessor training resumed yesterday  – and almost magically as we were promised, lots and lots of the pieces seem to have fallen into place.

Just as a recap, this is a short university-level course which will enable me to act as a ‘Best Interests Assessor’ under the Mental Capacity Act 2005.  The basic version of it is that UK was found guilty of breaking the European Convention of Human Rights (Human Right Act 1998)  (Article 5 – liberty and security) with respect to people who are detained in residential care or in hospital and who lack capacity to make a decision as to whether they should be there or not.

Some of these people will be being deprived of their liberty and as such, a legal framework needed to have been put into place to ensure that these decisions were not made arbitrarily and that (although this is  probably something I’ll return to) they have some kind of leave to appeal these decisions made through legal processes.

The role of the Best Interests Assessor will be as a part of the process which will be put into place come 1 April to determine whether an order can be granted to deprive an individual of their liberty in this manner – or not.

That is a very brief summary which in fact, needed about a week of training to thrash out – so apologies if it is a bit over-simplistic.

image

Partly, I think because of how the course has been structured. I have found the content very interesting which surprised me – I didn’t really expect it to be as compelling. 

Although when I was at school, I did want to be a lawyer (as well as the person who quality tests crisps)  so perhaps it is that aspect that is coming to the fore now!

The people attending from a wide variety of boroughs have added enormously to the learning process as there is a massive amount of experience in the room to draw on and with some having been trained through the switch to the 1983 Mental Health Act and through the initial implementation of that legislation with all the attendant procedures.

The training that I am attending is specifically for people who are already working as AMHPs and honestly, I think that having even a little experience of working within the frameworks and procedures  serves as some advantage.

We are also all social workers, although the training allows for nurses, OTs and psychologists to train. I suspect it is because we are doing the training for AMHPs and almost all current AMHPs are social workers. But it will be interesting to see the mix across the board.

My own borough has mostly trained Best Interests Assessors because the issue of payments for people who are not employed by the local authority has not been settled yet.  We, the social workers, are employed directly by the local authority and seconded out to the Mental Health Trust – and the PCT and Local Authority have agreed a joint intake of assessments. The Mental Health Trust has not decided yet how to manage these additional payments to ensure equity.

Although the people involved in the training were very quick to highlight the differences  – they put it in terms that we are more acting like a Section 12 doctor (the independent doctors with additional training in psychiatry that we would be assessing with) where we provide advice and a professional assessment but the responsibility for organising the assessment and making the decisions based on the recommendations we make, remain with the Supervising Authority (which would be either the Local Authority (for registered care homes) or the PCT (for hospitals)).

So yesterday we discussed the detail. What we are actually expected to do as a part of the process of the assessment – from looking through the forms (there are, unsurprisingly, mountains) to the procedures for registering authorisations of deprivations of liberty – and much more discussion about the conditions (or rather the preferred lack of them).

A lot of the questions I had last week have been resolved – at least as best as they can be before the undeniable confusion that will develop in practice.

All this is in the detail and I don’t expect it to interest more than a couple of people but it was probably one of the most useful days that I’ve spent training.

We also had a Q&A session with the person who has been appointed as Best Interest Assessment/Mental Capacity Act lead in our borough (I’m not sure of the exact job title).

So we were told about the processes that have been going on over the last 18 months or so, at least in the London region and how we were actually going to be assigned (and paid for (hurrah!)) assessments. We have been agreed some kind of payment at least – although this might seem a bit mercenary, the work is likely to need a fair amount of time and attention and I didn’t think it was entirely fair (although I had expected it) that we would be expected to carry out an additional role without an additional payment.

The concerns I have now, at least about the process, have diminished considerably and I am starting to see how the pieces will fit together in a much more practical sense.

We have another day of training today though. It includes a legal test among other things.

And then I have some study days scattered over the next couple of weeks to complete the written pieces that we need to submit – just about in time for the 1st April.

Interesting times, indeed.

Assessing Best Interests – Part 1

So I’m in the middle of a training course at the moment which will enable me to act as a Best Interests Assessor come April. It is fairly intensive training which, quite honestly, left me shattered at the end of the day – although I have to say – it was much more interesting than I was expecting. The post, therefore, might be a bit more haphazard than usual but I wanted to fill in some random thoughts I had yesterday.

Just to clear up though, the Best Interests Assessor role is a new one that is being created in response to a European Court ruling in HL v Bournewood (2004) which, to cut a long story short, found that Bournewood Hospital had acted illegally in detaining a patient who lacked capacity in an informal manner when he had no way of leaving the hospital. He was, as the judgement say, being deprived of his liberty.

The result of the judgement is that if someone lacks capacity and is not being held in hospital under the Mental Health Act (1983) , they may be being deprived of their liberty.

The so-called ‘Bournewood Gap’ is being papered over by adjustments to the Mental Health Act and the Mental Capacity Act which mean that those who are being deprived of their liberty in a hospital or a care home setting will need to be placed, according to Article 5 of the European Convention of Human Rights (incorporated now, into the Human Rights Act 1998) within a legal procedure that enables this deprivation of liberty and – as became a point of much discussion yesterday – under Article 5 (4).

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

So here we are, having a new procedure in place to assess and, if necessary, through legal process – authorise a deprivation of liberty for up to a year, maximum – of someone who lacks capacity.

IMG_1187 (can a cat be deprived of his liberty?)

There seems to be ongoing consternation about how the actual assessments will be undertaken. One of the benefits of doing the training – such as I am doing – is that there are people there present from a wide variety of local authorities. None seem terribly well prepared (including my own).

There were stories of people hearing about other authorities that were much better (and  much worse) prepared. Some of it is quite frightening really.

One person attending the training was the sole person undertaking this course in the borough that she works in. I wouldn’t want to be in her shoes. There were a couple of people who had recently or were about to retire and were looking for an ongoing income stream which seems particularly canny.

The course I’m attending is particularly for people who are already working as AMHPs so we are all social workers – although Best Interests Assessors can equally by nurses, chartered psychologists or occupational therapists. There are different (and longer) training courses for those who are not practising AMHPs – basically to fill in on the Mental Health Act interfacing that we are already up to date on.

The worrying thing is that the assessments look to be fairly time-consuming. Each assessment will need to be carried out by at least two people – a doctor (for the Mental Health part of the assessment)  and  Best Interests Assessor (for the.. er.. best interests part).

I might come down to more of the details in a future post and as the course progresses.

We make ample use of the Mental Capacity Act (2005) in our team already. My impression is that it is most widely used currently in services that relate to Older People. Certainly the people in these teams (I know, it’s not very modest because I’m including myself) have a better working knowledge of the Act to date. We’ve done lots of training around the Mental Capacity Act and are all fairly used to the new forms of Mental Capacity Assessments and the ways and means of the decision-maker through this process – but there really is no room for complacency because, as I am discovering, there is a whole lot more to learn.

I have to say Bournewood Hospital was cursed once or twice throughout the day.

Ultimately though, safeguards are important – it is just a process that I imagine will need a lot of fine-tuning – probably through case-law, before it is perfected – if it ever is.

Right to Life and Suicide

Last week there was a case that was heard in the House of Lords. It involved a woman, Mrs Savage,  who had been a patient at Runwell Hospital, in Essex and had been allowed to leave the hospital. She had subsequently acted to actively bring about her own death but walking in front of a train.

image Robert Brook at Flickr

Her daughter, Anna Savage,  brought the action against the NHS Trust – The South Essex Partnership Trust –  arguing that they had been negligent and had breached the European Convention of Human Rights by denying the woman in question, her right to life – as protected under Article 2 of the Convention.

The appeal against the Trust was upheld by the House of Lords after being turned down by the Appeal Court.

The Times prints an interesting summary judgement. Namely, if a hospital employs competent and qualified staff who make an error of judgement in the care of a patient as a result of the incompetency of a particular staff member than the Trust is doing all it can to protect Article 2 rights

The Trust itself, though,  has responsibilities to provide guidelines and systems  – operational obligations – to supervise patients who are at the risk of suicide. If they do not, as was found to be the case at Runwell Hospital – it is the hospital rather than the individual staff member who is found culpable of breaching the Article 2 right to life.

I am no lawyer but I do wonder if some of those operational procedures and guidelines are also necessary to be in place outside a hospital setting.  The judgement is clear in stating that the Trust has to have been aware of the suicide risk but it is a hope that at least, the judgement will emphasise the importance of organisational obligations and procedures and the responsibilities of the Trust to provide and maintain them.