Neary, Hillingdon and Best Interests Assessments

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The judgement in the case of Stephen Neary was published yesterday. I  held off commenting about the case when it first hit the press because sometimes I feel there is a lack of detail and an overwhelming presence of misunderstanding in relation to reporting about the Court of Protection and the Deprivation of Liberty Safeguards (DoLs).

Now that the Court has made it’s decision and published it’s judgement, I feel a little better able to comment and assess.

I haven’t read the judgement in great detail and have no doubt that I’ll come back to this over the weekend  but I wanted to share and explore some of my initial thoughts about it.

Steven  Neary is a man who is autistic and who was living with his father, Mark,  in the London Borough of Hillingdon. He was receiving extensive support from the local adult services department. Steven was placed in respite care and the borough felt that it was in his best interests to remain at the support unit where he was receiving respite care although his father wanted him to return home. A number of deprivation of liberty orders were made for the period between April to December 2010, which enabled Hillingdon to keep Steven at the support unit (the council claimed that between January and April Steven’s father consented and/or he was not being ‘deprived of his liberty).

The Court found against the Council that Steven had been unlawfully detained by the council between January and December 2010 and had been deprived of his liberty for the entire time with the ‘authorisations’ that the council had granted themselves being deemed to be ‘invalid’.

The other points that the judgement picks up are that the first referral to an IMCA (Independent Mental Capacity Advocate) came in October 2010 and that the matter was only referred to the Court of Protection in October – both of which denied a speedier resolution to this period of detention for Steven.

There are some interesting and useful statements which are given in the judgement.

Firstly the judge condemns Hillingdon for using the DoLs to impose their decisions on the family which goes against the spirit of the Mental Capacity Act 2005 saying

The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met, it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in the place at all. Using the DOL regime in that way turns the spirit of the Mental Capacity Act 2005 on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case, far from being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home.

And both crucially and importantly for Supervisory Bodies (who are the PCTs and the Local Authorities) comes this guidance

The granting of DOL standard authorisations is a matter for the local authority in its role as a supervisory body. The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. Where, as here, a supervisory body grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.

So this places a consideration on the decision makers or ‘signatories’ at the supervisory bodies to do more than sign. My assumption, as a Best Interests Assessor was that the assessments I send to a Supervisory Body were actually discussed between ‘decision-makers’. Maybe I’m hopelessly naive but I always assumed my assessments were not automatically ‘signed off’.

One of the things I have picked out from the reading through the judgement is the lack of experience and understanding about the DoLs procedure that seemed to be widespread. The judgement explains

He (Mr Neary)then began a dialogue with the social worker about this, which was a learning experience for them both, as neither had any experience of the procedures

It’s a shame that there is so little experience of the procedures by professionals and it indicates (although perhaps I am reading too much into this sentence) the broader misunderstandings that are created by lack of knowledge of new processes.

Later the first Best Interests Assessment recommends

involving an Independent Mental Capacity Advocate (IMCA). The report recommended that four conditions be attached to the authorisation, among them: “(1) Consideration to be given to the most appropriate place in which to provide ongoing care to meet [Steven’s] needs, (2) Consideration be given to referral to IMCA services to act as an independent advocate for [Steven].”

And of this first Best Interest Assessment, the judge says

The standard form used for the report specifically states: “You must consider whether any care or treatment the person needs can be provided effectively in a way that is less restrictive of their rights and freedom of action.” and makes reference to paragraph 4.61 of the DOL safeguards Code of Practice, which refers to the question of “what other care options there are which could avoid a deprivation of liberty”. It would not be right to be unduly critical of her report, particularly as it was the first DOL best interests assessment she had undertaken. She flagged up what became known during the hearing as “the elephant in the room”, which was whether Steven should be at the support unit at all. However, she did not follow up on this. She does not refer to the alternative of a return home as being an obviously less restrictive alternative. Nor does she refer to Steven’s unhappiness at being in the support unit. Nor did she propose an application to court as a condition of the authorisation.

For me, as a Best Interests Assessor these points are crucial in ensuring that least restrictive options remain at the forefront during my assessments.

Of the Second Best Interests Assessment, the judge is more scathing.

The judgement indicates that in June 2010 (as the first DoL was authorised for three months)

A different best interests assessor (BIA2) consulted Mr Neary . He describes her telephoning him at lunchtime for 10 minutes, saying that she had to file her report by 3 p.m.

It’s hardly a full and extensive discussion and for a standard authorisation of a Deprivation of Liberty there is a fairly generous time scale (21 days) allowed to complete assessments – it certainly shouldn’t need to be done in such haste.

In fact this is what the judge says about the report

I have not heard evidence from BIA2, but I have read her assessment. She recommends a three month period for deprivation of liberty. Substantial parts of her short report are cut and pasted from the previous best interests report. She appears to have had cursory contact with Steven on 21 June, the date her report was filed (even though it is unaccountably signed on 18 June). No reference is made to his wishes and feelings. No reference is made to Mr Neary ‘s opposition to the placement. On the contrary, the following appears: “I understand from my conversation with Mr M Neary  that he believes the current care plan is positively supporting his son and his transitional programme.” No reference is made to the possibility of a placement at home alleviating the need for a deprivation of liberty. The recommendation is made for two conditions to be attached, one of which suggests that the three outstanding risk assessments for Steven’s activities should be completed within eight weeks (in the context of a three-month deprivation recommendation). No reference is made to the absence of an IMCA, despite the condition in the previous standard authorisation, nor to the Court of Protection, despite the references in the previous assessment. I regret to say that the report has all the hallmarks of a document completed in a hurry.

Of the third authorisation, the judge notes

On 20 September, the third standard authorisation was granted by the Director for a period of two months. The authorisation makes no reference to Steven’s wishes or those of his father, nor to the possibility that deprivation of liberty would not be involved if he was at home. The purpose of the standard authorisation is described as being for Steven to receive a structured programme to contain his behaviour. Conditions were attached requiring risk assessments of all venues before Steven could undertake activities outside the unit. Consideration was to be given to an appropriate long-term placement.

The best interests assessment, by a third assessor, BIA3, refers to Mr Neary‘s disagreement with the placement and recommends recourse to the Court of Protection as a condition. BIA3 also noted that an IMCA had been requested.

These issues were addressed far too late. Steven returned home in December following a court order.

So where does this leave the DoLs process. I think some of the more useful parts of the judgement relate to an explanation of why Steven was being deprived of his liberty (in legal terms) and what amounts to a deprivation of liberty. We (Best Interests Assessors) have to rely on case law to help us pick together when a deprivation is occurring so it is useful to have further guidance.

The judge also states that the supervisory body should consider further the contents of the assessments it receives rather than just rubber-stamping them.

Although the framework of the Act requires the supervising body to commission a number of paper assessments before granting a standard authorisation, the best interests assessment is anything but a routine piece of paperwork. Properly viewed, it should be seen as a cornerstone of the protection that the DOL safeguards offer to people facing deprivation of liberty if they are to be effective as safeguards at all.

The corollary of this, in my view, is that the supervisory body that receives the best interests assessment must actively supervise the process by scrutinising the assessment with independence and with a degree of care that is appropriate to the seriousness of the decision and the circumstances of the individual case that are or should be known to it.

Paragraph 50 provides that a supervisory body must give a standard authorisation if all assessments are positive. This obligation must be read in the light of the overall scheme of the schedule, which cannot be to require the supervisory body to grant an authorisation where it is not or should not be satisfied that the best interests assessment is a thorough piece of work that adequately analyses the four necessary conditions.

I also rely on the obvious fact that the intention of paragraph 50 cannot be to require a supervisory body to give an authorisation simply because the best interests assessment makes a positive recommendation, whatever the quality of the work disclosed in the assessment. On behalf of Hillingdon, it was accepted for the sake of argument that it would not be bound by an assessment that was in effect so poor as to be “a joke”, so it follows that paragraph 50 cannot be read as if it simply required a positive answer without cogent reasoning. Hillingdon has however suggested that a supervisory body is bound to act upon any best interests assessment that is not grossly and obviously defective.

Against this, the EHRC and the Official Solicitor argue that where a supervisory body knows or ought to know that a best interests assessment is inadequate, it is not obliged to follow the recommendation. On the contrary it is obliged to take all necessary steps to remedy the inadequacy, and if necessary bring the deprivation of liberty to an end, including by conducting a review under Part 8 or by applying to the court. This is in my view a correct statement of the law. The suggestion that the supervisory body is bound to act on any assessment that is not grossly and obviously defective sets the standard too low. It supposes an essentially passive supervisory body. This would not meet the objectives of the Act and would not provide effective protection against breaches of Article 5.

The nature of this process for supervisory bodies is not likely to be very burdensome, given the relatively small number of cases, and if it were it would be fully warranted to ensure that the right outcomes are reached for people who are likely to be the most vulnerable service users. It should never be a rubberstamping process. A standard authorisation has the same effect as a court order and there is no reason why it should receive lesser scrutiny.

For me, this is one of the key points (and the reason I’ve quoted so much of the judgement text). It is likely to strike at the heart of the supervisory bodies and the way they authorise deprivation of liberty safeguards. And good, I say, they are senior managers and earn enough money to be able to take responsibility for the tough decisions that are in place ‘on the ground’.

The other issues that are raised regarding the lack of appeal process and the failure to appoint an IMCA and refer to the Court of Protection more speedily are also crucial in the judgement but for me as a Best Interests Assessor there are number of very useful reminders about the need to display independence in my role as an assessor and to advocate for myself in demanding the time in a working day to produce a good quality piece of work worthy of the difficult decisions that are to be made.

Mostly though, I just wish we had more open systems so that we can better understand the views and improve of knowledge regarding the expectations of what is an over-complicated and flawed system.

As a Best Interests Assessor (and an AMHP) I do not feel beholden to do what is best for my employer. In fact, sometimes I take an almost subversive amount of pride in taking a more independent view and opposing some management decisions by applying the law. However, I understand that I have a certain amount of confidence and bloody-mindedness in my approach.

Perhaps if any changes in the system are made (although I don’t think they will be) a further consideration of independence of the Best Interests Assessor will be considered. I have done Best Interests Assessments for my own borough and for other boroughs when I’ve been ‘loaned’ out and I genuinely feel it is less pressured and easier to be ‘independent’ when you are assessing from a ‘wider view’ of not being employed by that borough. Of course, I hope that I always remain independent but I think it would add a further element of scrutiny.

I have no doubt I’ll come back to this case and this judgement. There’s a lot to get through and many issues that I didn’t pick up on. It emphasises the importance of some of the decisions we make and the importance of being personally responsible for the reports I write as a professional.

And for anyone not following Stuart Sorensen’s series of posts about the European Convention on Human Rights on his blog – I’d highly recommend visiting, reading and learning. I have learnt much from them.

Press, Perception and the Court of Protection

Having had to study the Mental Capacity Act in fairly great detail, I often have to turn to judgements made by the Court of Protection to extend my general legislative knowledge.

The Court of Protection has a number of functions that can get easily interwoven but generally, it makes judgements about issues of capacity.

It’s always interesting to me how the press report Court of Protection judgements as in general the court sits in private . It isn’t thought of very highly by the press – probably for the very reason that many of the cases take place behind closed doors – which is particularly unusual for a court in the UK. Indeed, it’s traditional journalistic byline seems to be ‘the-secretive-court-of-protection’.

There was a case this week which was heard which involved a pregnant woman with learning disabilities and a decision which was to be made as to whether she should be subjected to a sterilisation following the imminent birth of her child. It is very emotive and difficult as an ethical subject.

The Court decided, unusually, to open up the case to the media with the usual and understandable constraints of anonymising the parties.

What I found interesting was a comparison of reporting about the story before the case was heard and afterwards.

The Daily Mail is a case in point. On Tuesday Morning it published this piece.

They quote a spokesperson for Mencap

David Congdon, of disability charity Mencap, urged the court to ‘tread very carefully.’ He said: ‘It is a gross invasion of someone’s basic rights unless there are clear medical grounds and there do not appear to be in this case.

‘Using sterilisation as a form of contraception is totally unacceptable.

‘Years ago there were lots of cases like this but we hear of very few these days.’

Applications to sterilise women with learning difficulties can come from local authorities and do not require the backing of their families, he said.

‘The family’s position in these issues is not that great, because the person is an adult,’ he added.

‘They have to be consulted, but the application may have been made by social services.’

I can’t say I disagree with Congdon, it is a massive potential infringement of human rights to forcibly sterilise anyone but the weighting in the quote implies that the court disregards the family and it is a cunning and devious decision made by social services. Regardless of the fact that it is a medical procedure and any application would have to be made by the Trust employing the medics who would be responsible for carrying out the task.

The Telegraph use the same quote. As does the Independent which adds

Since the Independent’s battle to open up the Court of Protection, the paper has received numerous calls from people who allege that local authorities have been using the automatic secrecy governing the Court of Protection to severely restrict access to their loved ones. Because the hearings are largely held in private and no court listings are generally published earlier than the afternoon before hearings, it remains difficult to investigate and analyse such allegations.

You see, it’s easy to make one-sided complaints about a Court or a local authority when you only have a part of the story.

It’s easy to accuse ‘social services’ of being overbearing and evil when they are not able to construct any kind of counter-argument for the sake of the service users they represent. I say this having been involved personally in a case which could have been presented in a very one-sided way and would have been prime meat for the front cover of The Daily Mail – however the background of abuse within the family meant that what might have appeared to be callous actions had to be taken. We could never disclose that so would never have been able to defend ourselves.

But back to the secretive Court of Protection. The judgement or lack of it came yesterday as more information about the case was revealed.

It so happens that the woman’s mother was in favour of the sterilisation of her daughter. This is not a situation where the family have been side-lined by any means.

As the Mail put it yesterday

The woman, known only as Mrs P, broke down as she explained the drastic procedure was the only way to spare her 21-year-old daughter the heartache of having further children and being forced to give them up for adoption.

The daughter, known as P, already has one young son and is due to give birth to a girl today by caesarean section.

She was described as ‘sexually healthy and active’ but unable either to exercise restraint, or fully to comprehend the consequences of her behaviour.

Her mother told the Court of Protection that while her family would support these two children, they could not cope with any more.

She said: ‘I want the best for my daughter. We want to keep the children together as a family unit. But obviously we can’t keep on supporting more and more children.

Not really the evil social services taking action behind the backs of families that might have been implied the day earlier from the reporting.

It is an incredibly difficult decision to be made and as it happened, no decision and therefore no sterilisation order was made. The judge, ordered that at present there was no sufficient evidence to meet the criteria for such a drastic action under the Mental Capacity Act and while the best time to perform the sterilisation would have been at the time of the caesarean (which I believe was to take place this week), further hearings will happen over the next few months before a final decision can be made.

Clearly it is not a body that makes heartless and unconsidered judgements for the sake of it and loathe though I am to wander into the comment sections of Daily Mail stories, the difference between tone in the first story where the situation had been set up and has comments such as

‘All those in favor please show us your Nazi membership card as this is exactly what they did, So be very very carefull, many alive now do not understand the implications of what is potentialy a dangerous and devastating and far reaching precedent bought on by these council jobsworths. ‘


‘OMG, my blood is boiling reading this tragic story. What right do the council have to do this? How severe are this woman’s learning difficulties? Why not give her a contraceptive jab every 6 months, given at home if need be? Are social services and a representative of the secretive family court going to be present at the birth of the baby, whisk the baby away as soon as it is born and put up for adoption? If this is given the go ahead by the judge and forced sterilisation takes place, this is just the start. We will have crossed a line and the ‘Brave New World’ will begin. ‘

I know the Daily Mail comment section is not the place to look for rational argument and debate but we get a feel of the general perception that this is somehow a ‘council decision’.

After the information is shared in the second article, the tone of the comments change to

It’s sad but i have to agree with the mother. I think she has a very valid point. She will be looking after the children and it will break the WHOLE family’s heart should they have to give up any children for adoption. Also what happens if she falls pregnant every year till she can’t have any more children. The daughter clearly does not understand the situation because of her disability.


Unfortunately due to the Human Rights Act, this mother’s desperate plea will be ignored despite the emotional, psychological and physical turmoil this young girl will go through again and the stress and pain for her family. Very sad situation for everybody involved including the unborn baby.

Please don’t assume that I am ‘in favour’ of the sterilisation as a matter of course. I’m not but I do think the decision is absolutely taking place in the right arena where the considerations of P and her family need to be wholly taken into account under the law.

It’s just easy to see, in this case, how easy public perception and tone can be altered by reporting styles and language.

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!).

An Assessment of Capacity

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I am constantly assessing capacity. It isn’t always done on the formal paperwork that we use when a major decision or one likely to have major consequences is being made.

Sometimes it is  a simple action that might be almost subconscious. Does the person who is drunk on the night bus know which stop he wants to get off at? Sure,  he’ll have capacity tomorrow but by that time he might be in Hertfordshire.

I wouldn’t say it is something that only happens at work. Incapacity happens to all of us at times. It might not be drunkenness but rather sleepiness.

Capacity and incapacity doesn’t just happen to older people with memory problems.

However, the Mental Capacity Act 2005 is very clear that attempts should be made to wait until a person has regained capacity – if it is a temporary state – when a decision is necessary.

And each decision and assessment of capacity is taken independently. Someone can have the capacity to make one kind of decision about a preference of daytime activity or preference about living arrangement but lack capacity over another matter – like managing finances.  It is not wholly uncommon for me to do a couple of capacity assessments simultaneously and have different results for each.

I want to look back at a  capacity assessments I’ve done in the past. I’ve changed or amalgamated details to anonymise the scenarios and obviously the names are invented!

Mrs Smith has Alzheimer’s Type dementia. She gets very confused by details and has a deteriorating short term memory. She lives alone. I was asked to assess and make a decision about her capacity to manage her finances due to some concerns that she had been giving money to a ‘friend’ who wasn’t really a friend and was now hassling her for more money.

It seemed initially quite straightforward.

The Capacity Act specifies 5 principles and on that basis I undertook the assessment.

The first is to assume capacity unless proves otherwise. This is sometimes quite a  hard one with some background information in your hand. It is more difficult to assume this position than it might seem.

All practicable steps must be taken to help that person to make a decision

A person is not unable to make a decision because their decision is unwise or we wouldn’t agree with it

Any decision taken on behalf of someone who lacks capacity must be done in their best interests

and – it must be the least restrictive option.

With those principles in the back of ones head – there are 2 other things to consider when actually assessing whether someone has capacity to make a particular decision according to the Mental Capacity Act 2005.

Firstly – there has to be some kind of ‘impairment or disturbance of the mind or brain’. This can be permanent or temporary and is incredibly broad. but then, this disturbance or impairment has to be sufficient to prevent them from making a decision at that time. If you can wait for a decision, you must.

These kinds of assessments would take place thousands of times in hospitals up and down the country as people are admitted who lack consciousness and decisions have to be made before there is a chance to ask about treatment choices.

In the case of Mrs Smith, I am visiting her at a time of her choice – late morning – we are in her home and she is familiar with me. Her dementia would be the impairment or disturbance of the mind or brain and while she has good days and bad days, the lack of significant variance in her cognitive functioning is sufficient for me to be assured that a time delay would not lead to her condition improving.

Having passed those hurdles there are four parts to the actual capacity assessment.

Namely that Mrs Smith

1. Understands the information relevant to the decision

So I ask her in general about her finances – how she gets her money, how much money she gets, what would she do if her money wasn’t available one week or didn’t turn up?

How much does she spend on her weekly shop? How much is a loaf of bread?

These might sound minor but it builds a picture for me of her understanding of finances and proportions of money. If she thinks a loaf of bread costs £50, giving £50 to her friend is going to have different implications to her.

These are also fairly straightforward questions to build into a conversation. It doesn’t have to be a form-filling frenzy and ideally should be in the form of a relaxed conversation.

I also need to be clear that Mrs Smith understands the implications of her actions.

So I might ask about savings and what she would do if she were £50 short one week – would she still have enough for the essentials?

2. Can the person retain the information given

I might ask back some of the questions I’ve asked previously or just add a gentle reminder or two about what I’ve already said.

Where was I? Ah yes, thanks for that, Mrs Smith, I was asking you about your pension, wasn’t I?

3. Weighing up the information as a part of the decision-making process

So Mrs Smith, you know when you are £50 short for the pension because you’ve given it to Mr Brown.. what is the result of that?

Sometimes someone might have a particular ‘block’ about the consequences of a particular actin – so Mrs Smith might say, I know that I am short but there’s always more money where that came from. I never run out of money on my £95 a week pension and lack of savings.

OK, not the best example but she  might be able t retell me the outcomes but not relate them to her situation directly or use the information given (she is £50 short) and find the relevance in her own life.

But that’s isn’t what she said.

She said that she had always given money to Mr Brown. Yes, it left her short of cash as it always had, did and would but she would struggle by. She just bought less.

4. The last part is that the assessee has to be able to communicate the information back.

Every effort has to be made to facilitate this for people who might have some kind of sensory impairment. Any kind of communication ‘counts’ – it doesn’t have to be verbal at all.

Mrs Smith was able to talk profusely so communication wasn’t a problem for her.

In the end, I decided that she did have capacity to make decision regarding her finances and fell into what I, personally, would consider the ‘unwise’ decisions area. She had, I learnt, given money to people who asked her for help, for many years. This was not new behaviour when she developed Alzheimer’s. She was more vulnerable now but that is for the safeguarding procedures to manage.

Just because she acts in a risky way doesn’t mean that she lacks capacity.

Just because she need to take actions to protect her, doesn’t mean that she lacks capacity.

It is just a simple example. I hope it’s useful to someone ‘out there’ in understanding the process.

We have lots of forms to complete, of course, but I try to jot down a few questions in advance that might take me through the first stages of ensuring someone understands the decision and has weighed up the information given. Each decision though is unique.

I would involve family and friends as far as possible because it builds a picture of who that person is and was and what they would want if a decision has to be made on their behalf.

Sometimes it is too easy to assume that someone lacks capacity from looking at their history and documentation.

Sometimes the harder decisions are to be made when capacity exists.

Lack of capacity does not just mean ‘we can make a decision for you’ – the decision has to be right for that individual. Not right for the professional. Not right for their family. Not what minimises risk.

But what would that person choose to do if they were able to.

It can be more of a quandary than first appears and is never a decision to take lightly.

The Decision Maker

Over the week, I have a few posts planned about different aspects of the Mental Capacity Act 2005 – it’s partly because I’ve been asked questions specifically about it and partly because I, personally, find the area enormously interesting.

Working, as I do, primarily with older adults, means that I work with a lot of people with dementia of one form or another. Working with a lot of people with dementia means that the issue of capacity or lack of it is one that we deal with every day. While far from setting myself up as an ‘expert’, I thought it might be interesting – possibly helpful – if I shared some of the issues that have raised themselves in our own borough.


When the Mental Capacity Act 2005 ‘went live’ we had a lot of training about capacity, capacity assessments and the roles of IMCAs (Independent Mental Capacity Advocates).

In a sense though, the Mental Capacity Act just firmed up a lot of practice that had been  happening within the sphere of ‘case law’ or ‘common law’.

One thing it does do though, is provide more protection and guidance for anyone who carries out an assessment of mental capacity – and make no mistake – anyone can carry out an assessment of mental capacity.

Today I want to look at the idea of ‘The Decision-Maker’ as it is one that still causes a great deal of angst in the office.

Who is the Decision-Maker?

The Decision-Maker is the person ‘on the ground’ so to speak if they suspect that the person lacks capacity and  are there (figuratively as well as physically)  when a decision needs to be made.

So the carer who goes in to someone’s house in the morning to someone who cannot make a decision about what is ‘weather appropriate’ clothing, might be the decision-maker in that case.

A husband might decide that it is best for his wife to have steak for dinner rather than chicken because steak was always her favourite. He is the decision maker.

These are the kind of snap decisions that might not immediately come across as being subject to an ‘assessment of capacity’ but many people – especially those involved in care – would take thousands of decisions in the ‘best interest’ every day.

Most commonly it will be family members or carers who make these decisions.

Sometimes, of course, it is the involved professional.

Last week, I was sent a letter from a GP asking for an assessment of capacity for an individual for whom I am the care coordinator because she was refusing to take her medication. Could tell him if she had the capacity to refuse medication?

I responded that I could not because the GP is the decision-maker.

(Of course, while happy to advise and support -  the decision is not mine to make).

Another nurse in the team discussed with me a conversation he had had with a social worker in one of the community teams who had asked him to ‘make a decision’ about the type of care a particular resident was having at a nursing home.

The social worker is the decision maker. Sure, she can ask advice, that’s no bad thing. But she cannot delegate the decision making to my colleague.

A few months ago, we had a request from a social worker in another team to assess the capacity of someone who had dementia to make a will.  The referral came to the team meeting and was summarily dismissed with a ‘the solicitor has to do that’ remark. It seemed counterintuitive at the time but the Code of Practice is very clear about this. (MCA COP 4.38 – 4.43)

The person making the assessment as to whether capacity exists has to be the person on the ground who is suggesting (or not) that action that is to be taken.

Those are some fairly straightforward examples. Sometimes it is a much more difficult place to be.

There is someone I’m working with at the moment who lives at home. There are proverbial risks hanging from every corner of the house. I can’t even begin to recount them! She has been agreed for residential care. She has  family who take an interest who find they are constantly worrying about her and want her to move to a residential care home nearer to them although, they tell me with slight reservation, she always said she would rather die at home than go to a residential care home.

I’d like to devolve the responsibility of my decision to someone else. Really I would. I sometimes see my caseloads play out on the imaginary front pages of the Daily Mail or the Sun.

After completing my capacity assessment (I’ll come to the details of that tomorrow), I surmise that no, she does not have the capacity to make a decision about her needs regarding her residence.

That doesn’t mean that I then ship her off to a residential home even though she doesn’t want to go though.

My decision takes into account the risks and the strength of feeling that she wants to be at home and her utter and complete distress at mentioning residential care.

She remains in the community with increased support and every time I see her my heart is in my mouth.

I wish someone else would make the ‘decision’ but while other people can inform and support me with it – just as I said to the GP – it is my responsibility.

Other decisions I might have made have been with the input and support of an advocate (Independent Mental Capacity Act Advocate has a formal role – which again, I’ll come to later in the week) but they don’t make a decision for me. I am not bound by their advice (although I’ve never gone against it!) but at the end it is advice to help me make a decision – not make a decision for me.

To make a decision there has to be a reasonable belief that a person lacks capacity. There are some indicators about what form and what steps should be taken during this process but as a professional being asked to make decisions, the most important thing that has been drilled into me is to ensure that I record clearly the reasoning behind my assessment and my decision.

We have some very good forms (I don’t say that very often!) that we use when we are carrying out these Capacity Assessments which really take us through the process and the legal requirements on a step by step basis and form their own record and reasoning.

But I’ll come back to the process tomorrow.

In the meantime it is important to remember that the Mental Capacity Act is a document that protects the service user/patient/all of us.

Someone doesn’t lack capacity just because they don’t agree with the professional decisions made around and about them just as they don’t suddenly have capacity just because they agree to do what they are told.

Making decisions about other people’s live – especially very significant decisions – isn’t always a comfortable place to be – but the mantra of best interests needs to be playing in the background of our heads along with the very basic tenet of ‘what would this person want if they didn’t lack capacity?’.

The answer isn’t the same as ‘what would I want if I lacked capacity’ or ‘what would their family want for them?’  Sometimes it is but that isn’t necessarily the default position. Yes, of course family and friends must be consulted. As good a picture as possible must be created of that person’s life, aspirations and hopes. Often it is the same as the people around them who love them most.

It must though always be a very transparent decision that, if challenged, can be defended. To the Court of Protection if necessary although lets hope it never is!

It’s a lot of responsibility at times but legally it can’t be shirked.

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.

[picapp align=”none” wrap=”false” link=”term=judge&iid=166857″ src=”0163/d47d70bd-7b4f-4feb-bfb7-28d7b4b06717.jpg?adImageId=8295161&imageId=166857″ width=”234″ height=”176″ /]

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.

The Court of Protection

There was a curious headline in the Mail on Sunday yesterday. I was not curious enough to buy the paper but curious enough to investigate on the Mail website. Apparently, according to the journalist,

Secret court seizes £3.2bn from elderly… and even forces furious families to pay to access own bank account

Without any reading, I knew the reference was to the Court of Protection. I know I am in a slightly specialised area but I hadn’t considered it was a ‘secret’ court. I suspect that in mail-speak that means that they cannot sit in on its hearings but I had honestly thought it wouldn’t be something that most people would be interested to see covered as much as anything – let alone the fact that as all its hearings involve people who lack capacity, obviously the people in question are not often in a position to give permission to have the details of their lives and finances plastered around in public.

image Archway Tower (where the court is based) by markhillary at Flickr

Now, I am no great supporter of the Court in its current manifestation, not least because, since the Mental Capacity Act 2005 came into force with its adjustments to the court processes, the time lags in making a referral have been horrendous –  but – it does provide an important safeguard to those who lack capacity and I was surprised at the vitriolic and sometimes plain incorrect language of the article in question.

The court and the system in place is a crucial protection to those who lack capacity to make decisions about financial decisions although it is not solely restricted to financial decisions – that is the basis of the article.

It can be very long-winded and involving. Basically when someone loses the capacity to make a decision regarding the management of their finances, a power of attorney can no longer be taken out, and although a lasting power of attorney can be registered – that can only be done if the decision and the person taking up the ‘attorneyship’ had been made in advance of the loss of capacity.

Otherwise, a lengthy application is made to the Court of Protection. Often it is just a matter of extensive forms and there is an application fee – which the Mail rails at. I expect the Mail would rail more if the all fees were paid from the public purse but, for the record, these fees are means-tested – meaning they are paid only if the estate can afford it – otherwise, they are waived.

The Mail article of course, concentrates on some individual matters where it has been so difficult for families to access the money of their loved ones – but, and this is a crucial matter, the court is bound to make Best Interests decisions and some families’ ideas of the best interests of their relatives’ money is not the same as an independent solicitor or judge.

For the most part, in uncontentious matters, the court appoints a family member as an ‘attorney’. Indeed, that is by far the most favoured options. Deputyships are used when there is either no family member or sufficient concern about the money in question and how it might be used by the family member.

The Mail, using it’s obviously sharp reporting skills, quotes some users of an internet forum set up to gripe about the Court of Protection. I would venture a guess that any story they write about anything, they could drum up some anonymous quotes from random internet forums to concur with whatever they wish us to believe.

I can’t defend everything the Court does. It is slow without doubt and it is very far from transparent but a body such as it is, needs to exist. All that is needed to avoid its role is for a more widespread knowledge of Lasting Powers of Attorney which can be set up at any point prior to the loss of capacity as, in a sense, a ‘living will’ and there would be no need for these processes (except, and I know of at least one case, where these LPAs have been challenged on the basis of some adult protection concerns).

The Court of Protection is tightly wrapped in the processes of protecting those who cannot advocate for themselves. It is very very far from perfect but it has a crucial role. I’m both surprised and not surprised that the Mail is blaming the existence of this court on the Labour government saying

The first Court of Protection was set up by Labour’s 2005 Mental Incapacity Act, which for the first time formalised the arrangements for dealing with the assets and care of people suffering from dementia and other similar illnesses.

Before this it was left to families and social services to make arrangements – but it was argued this ad hoc system was open to abuse by both family members and by officials.

That’s blatantly false, for the record. The Court of Protection existed long before 2005 Mental Capacity Act (note – NOT Mental INCapacity Act), its form has changed somewhat and if anything, I’d say it is more transparent rather than less although by the comments on the Mail article, you’d think it was all some evil plan by the Labour government to ‘rob’ people of the money their family members are rightfully entitled to spend on their behalf..

Perhaps I have a distorted view due to the levels of financial abuse of older and incapacited adults that I have seen, by family members, due to my job. Of course, most people can be trusted completely and most want the best for their family members but money and greed does strange things to people, even some of the closest of families and it is vital that these checks and balances are in place in the form of an independent body.

Ultimately, in the words of a ‘spokesman for the Department of Justice’ quoted in the article

The OPG (Office of the Public Guardian) recommends that every adult considers making a lasting power of attorney. This enables people to choose someone they know and trust to make decisions about their property and affairs or their personal welfare, should they become unable to make decisions for themselves.’

And with that, I would have to agree. I try to tell people again and again to use the Lasting Powers of Attorneys while they can to avoid any difficulties in the future. I share that advice out of the ‘work’ environment as well as I think if there is anything to be taken from this article – apart from shabby journalism by the Mail – it is that point that no-one knows what may or may not be around the corner and if there is someone who you know and trust to make decisions on your behalf – appoint them formally..