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.

Undercover Care : The abuse exposed – A Review of Panorama

I sat down to watch Panorama yesterday and the trailers and name of the programme were something of a giveaway so I wasn’t exactly unprepared for what was shown.

Panorama had been alerted to abuse within Winterbourne View near Bristol, which is a private hospital run by a company called Castlebeck for people with learning disabilities and autism and according to the description on their own website

..  is a purpose designed acute service, offering assessment and intervention and support for people with learning disabilities, complex needs and challenging behaviour.

It can also provide a service for those liable to be detained under the Mental Health Act 1983. It offers a stable, structured and therapeutic environment and the support of caring and dedicated staff.

Winterbourne View, which has 24 bedrooms, offers the chance for people to progress to more community-based living as part of their ongoing rehabilitation, at their own pace.

Winterbourne View charges an average of £3,500 per week for a place. I wonder how much is spent on staff costs and training.

Acting on the information from a former senior nurse there who had been whistleblowing, Panorama sent in an undercover support worker (journalist) and some hidden cameras. I knew I was prepared. I knew we were going to see abuse but nothing prepared me for the actual footage that I saw.

I try not to engage in hyperbole but what we saw was purely and simply torture of adults who have needs which make them more vulnerable.  Physical restraint was used as a punishment and some members of staff were deliberating provoking residents almost as if it were a sport and they were playing at bear baiting. It made for uncomfortable and emotional viewing.

I worked for many years in homes for adults with learning disabilities before I qualified as a support worker and the lack of humanity with with the residents in the hospital were treated was almost physically painful to watch. The programme showed a woman being given showers fully clothed and being dowsed with water outdoors on a cold, March day until she was shivering profusely. They showed her being pinned under a chair.

In one of the most troubling pieces of footage, a girl is shown as she had tried to jump out of the window and the staff mock her attempted suicide and taunt her to ‘try again’ and ‘make a better job of it’ saying things like ‘do you want me to open the window more’ and mockingly telling her she would make a ‘splat noise’. Even writing it out is difficult.

There were other things – comments made, pin downs and the use of martial arts techniques which are, unsurprisingly, wholly inappropriate and this footage was shown to a specialist psychologist with the Tizard Centre who would respond with the same gut horror that you didn’t need to be a psychologist to understand.

The footage really spoke for itself and I wondered about the position of the undercover journalist who stood by and watched some of the abuse occurring. There is an issue of ‘greater good’ versus ‘personal responsibility’ so the argument would be that the programme itself was able to prevent future harm coming to the residents by being transmitted but he admits that it was difficult for him.   He says here

I was watching on the sidelines, resisting putting a stop to this (abuse) and blowing my cover. Simone was staring at me as she lay on the floor, staring at the only person not abusing her.

I could not save Simone on that day. I had to resist my instinct to step in. I was there to gather the evidence that could help save others from a similar fate – and Simone herself from future abuse

Some of the more difficult responses came later in the programme as the CEO of Castlebeck was interviewed and of course expressed disgust and surprise at the levels of abuse in Winterbourne View. A company statement is published here and alongside all the usual guff is an acknowledgement that the whistleblowing policy was not adhered to when an initial complaint was made by a staff nurse on 11 October 2010. The footage was filmed between February and March 2011.

I was more furious by the response of the CQC. The whistleblower also contacted them, you see with the allegations of abuse. He contacted them three times.

Winterbourne View had last been inspected ‘two years ago’. Is that the kind of satisfactory inspection regime that we have, Mr Burstow? Oh, wait, it’s ok, because the statement from the CQC says Burstow has authorised a sample of 150 hospitals receive random unannounced inspections. Woah. Only 150? Only a random sample? Why just hospitals for people with learning disabilities? If random unannounced inspections are seen as necessary to prevent institutional abuse on such a wide scale, surely they should be the NORM for everyone who receives a service via a service inspected by the CQC.

No, you see, Burstow (and the Labour ministers before him) seem to think that self-regulation is the way to go. The way the man from the CQC squirmed as he insisted that the paperwork had been in order at Winterbourne View tells a tale all of its own.

And as for the staff, four have been arrested to be charged under s44 of the Mental Capacity Act which makes it an offence to ill-treat or wilfully neglect a person who lacks capacity.

It also begs the question – where were the Deprivation of Liberty Safeguards? Were any of the residents detained under DoLs  – or the Mental Health Act for that matter (as the hospital was assigned as such to accept people detained) and if that was the case, shouldn’t there be additional checks. Would independent advocates provide a further check?

There are a lot of questions that remain and the main one is the way that institutional abuse can fester in a residential care setting. There are wonderful care homes and hospitals around. I see them and I worked in them and often the ethos trickles down from top to bottom. Staff who see other staff abuse residents can ‘join in’ to be accepted – it is a classic position of bullying and unfortunately sometimes people who enjoy this kind of power play are attracted to work in social care. There needs to be an environment that does not accept this and that stamps down on it immediately and that was the real failing of Castleview.

This was not about 4 rogue members of staff. This was about an environment that allowed them to abuse and for that the senior management up to the Chief Executive should be responsible. Where is the support and training for staff who have to work in stressful environments? Where was the supervision that would have stamped out some of the abuse.  That doesn’t excuse those who were responsible for mistreatment  but it draws interesting parallels with the sacking of Shoesmith.  Wouldn’t we be baying for the blood of the CEO of Castleview? Or perhaps because the abuse took place in a private setting there are different lines of responsibility.

I think we should look long and hard about how we, as a society, seek to push people on the peripheries of society, because of age, disability or capacity to the margins of society and people to provide care who are not regulated and not supervised.

When the regulator fails so substantially as to ignore someone who whistleblows explicitly, do we not see a problem the ‘system’ that is increasingly reliant on proactive ‘complaints’ to trigger assessments?

There is much to do and much that needs to be changed.

I wouldn’t say I enjoyed the programme, it upset me and it angered me but I think everyone involved in the sector should watch it.

It can be viewed here on the BBC iPlayer.

Weekend Links 6

As usual at the weekend now, I’ll just run through some posts that have caught my attention over the week relating specifically to social work and social care.

Hessian Pepper at The Small Places has a wonderfully useful summary and commentary on the MIG and MEG Court of Protection judgement which raises a number of questions about the definition of a Deprivation of Liberty. I would strongly advise anyone concerned with the Mental Capacity Act to follow his/her blog because I’m finding it a great resource!  Another great legal resource which has a broader remit but is a fascinating and useful read is the UK Human Rights Blog.

On How Not to Do Social Work,  there are thoughts and reflections on the transition into legal adulthood as an 18th birthday looms.

Social Worker-to-Be (who isn’t a ‘to-be’ anymore!) tells us about her first weeks as a Newly Qualified Social Worker.

SocialJerk deconstructs some of the toys she (um.. her clients?) use. Fantastic stuff. I quite like stuffed animals myself but they might not demonstrate some of the ‘interactions’ as well and anyway, I’m not the best at passing toy judgement!

Kyrss on The New Social Worker Blog had an interesting idea of writing a ‘Valentine Letter’ to ‘Social Work’. I’m not sure might would have been so poetic.

At Always Something to Complain About, the focus is on paperwork and it’s clear that some issues really are truly international.

Malcolm Payne at St Christopher’s Blog has a fascinating post about the Ombudsman Report into End of Life Care that was published this week from a perspective of a Palliative Care Practitioner.

Nancy Smyth at Virtual Connections has a fantastic post about using therapists using social media with trauma survivors. It’s a really interesting perspective and  as social media becomes increasingly a part of the mainstream ‘life’ we live, we do have to think about how it is used at work.

Another interesting post is the ‘Behind the Scenes at the Social Work Podcast’ episode and interview with the founder. As I’m thinking and planning a podcast myself, I’ve found it very timely.  My respect has increased no end after trying to edit even 5 minutes of audio myself last weekend!

Finally, on a lighter note, Jontybabe tells us 5 things that make her feel good..

And in that spirit, here are my five (excluding the obvious family and friends!)

1. Waking up on a Saturday Morning and realising you have a full weekend ahead.

2. A good novel that you can’t put down

3. Chocolate. Any form really (although I was too scared to try Marmite Chocolate so that might have to be qualified – now why did I never think about a Chocolate Blog.. oops, getting distracted).

4. Travelling to a new places

5. Learning new things.

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.

Rising Detentions

Community Care have a short report about figures were published yesterday by the NHS which indicate that there has been an increase in detentions under the Mental Health Act over the last year.

As the article says

The numbers of people being detained under the Mental Health Act rose by 1,692 in the last financial year according to figures published by the NHS information centre.

The 3.5% increase brings the total people detained under the act to just under 50,000 in one year and represents the largest increase in three years.

The total numbers admitted to hospital also increased to 30,774 in 2009-10, a 7.3% increase from 2008-9. The rise was attributed to an increase in admissions to NHS hospitals, while previous increases have been driven by private sector treatment.

I thought it would be an interesting point to consider as, on an incredibly unscientific basis, I can say that I have been personally busier as regards making applications for detentions under the Mental Health Act in the last year than I was in the previous year.

It’s ironic considering we’ve had a number of wards closing in our Trust and the number of beds available has decreased.

The reason? Again, I repeat this is completely based on my own experience but I’d put it down to the impact of the Mental Capacity Act 2005 and particularly the provision of the Deprivation of Liberty Safeguards. This has led to a massive increase in the amounts of assessments I’ve been asked to complete for people who might previously have been informal patients in psychiatric wards who lack capacity to consent to admission or treatment.

Of course, this group of people should probably have been brought under the auspices of the Mental Health Act previously, on the basis of meeting the criteria for detention and despite all the perceptions and stigma associated with ‘being sectioned’, personally, I think the legal processes allow for much better protection of the individual than ‘being an informal patient’. There are various issues about how ‘voluntary’ an admission can be if someone has the threat of a potential compulsory detention hanging over their head but if there is a question of them being stopped from leaving, it has to be a strong consideration.

There is a greater awareness of issues of capacity now and that one doesn’t have to be rattling the door down and repeating ‘I want to go home’ every five minutes to be objecting to ones detention on a psychiatric ward.

There is also the sticky s117 issue which had allowed some consultants and Trusts to ‘dodge the bullet’ on making recommendations for compulsory detentions when really they might have.

s117 of the Mental Health Act ensures that the NHS remains responsible for any aftercare services provided. That may include residential and/or nursing care costs which can rack up to thousands of pounds fairly quickly.

Guidance has changed over the past few years (due to case law clarifications) and we are told that we cannot now discharge the s117 responsibility if someone has dementia as it is not likely to improve and therefore the aftercare is provided free for life.

Now, I’m not saying that these potential high costs might have prevented some informal patients being admitted formally to wards but it is a massive potential cost.

The DoLs (Deprivation of Liberty Safeguards) have led to greater awareness and training on the wards in relation to the interaction of the Mental Health Act and the Mental Capacity Act. I’m not saying that is the sole reason for an increase in compulsory admissions on the wards as I am aware my experience, being particularly in the field of older adults, is an area where this matter is much more relevant to those who might work with adults of working age,  but for me, it has been the key factor in the increase in applications for compulsory detentions that I, personally, have made.

Refusing help

The tragic case of Stephania and Sam Wolf has been in the news over the last day. Without knowing anything but the most cursory details of this particular case, it raises some issues and dilemmas that I am very familiar with and wanted to explore for a moment or two.

There is the issue of the overstretched carer who has little external supports. Yes, help was offered but help was also turned away. One can also speculate about the pressures that being a sole carer in a small community might bring and how much effort was made by services to actively engage with people who might find their presence stigmatising. One can also speculate about the kind of help that was offered and whether our systems are limited both in the type of help offered (day centres, home carers for example) and also by the ways in which help is offered.

These are the problems that may be created when social workers are berated by the press and in the public perception. An unrealistic image is engendered of the profession and people who might benefit and need social work interventions feel that there is a stigma attached to having a social worker or social services involved. For me, this is far more important an issue for the College to address than whether I feel comfortable telling people on the bus that I’m a social worker.

As long as ‘the social’ is seen as something wrong, unpleasant or something of a punishment, it will make people from all client groups – adults and children – reluctant to engage.

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Now again, I want to emphasise that this is not a statement about this particular case, but there is a dilemma when a family member is a main carer of someone who may lack capacity to make a decision about their own personal care needs.

When would we, as social workers – as representatives of ‘social services’ challenge the carer as to whether they are acting in the best interests of the cared for and when does ‘refusing help’ need to be challenged?

This is one of the most troubling dilemmas as a professional. It is much easier to provide a service and to provide care when everyone agrees of course. When there is a clear capacitious statement by someone who may be entitled to a service that they do not wish for a service – again, that is clear, also  when there is blatant abuse it is a very clear judgement to make that the family member/carer is not acting in the best interests of the cared for – but when do we cross the line and demand services go in for the benefit of the person who might not be able to decide for themselves and whose family member is refusing help on their behalf.

Especially if the family member may be living in the same property. There is a risk of ‘upsetting the apple cart’ so to speak and ending up on the front page of the Sun or the Mail being accused of ‘dragging granny away from loving daughter’ or strong-arming services in.

A lot of times though,  services are refused, we can and often do have to walk away. People have the right to refuse.  Sometimes though, we need to assert the services more fully. Services don’t have to be removal to residential care – that is another myth that does enormous damage in the public perception of social care and often when services might be refused it is because people or their families are scared we’ll ‘put them into residential care’. Often I chuckle to myself that the last thing in the world we are going to do is put someone in residential care if they don’t need it as a  package of care at home is  infinitely cheaper.. but that’s not always as clear in thoughts and perceptions prior to arriving and being able to say this.

The problem with asserting roles and trying to engage slowly with a view to increasing or accessing services by slow introduction and the creation of a relationship of trust is the time factor that we are all subject to in our day to day work.

Fortunately, in the team I work in, being a CMHT, we are given more time to actively engage with users and carers and can often, even if it is over a period of months, gently prod towards a slow introduction of care services.

Just this week, I have finally, after working with someone for well over a year, persuaded her to give some formal care services ‘a try’. She could have done with those services for a good few years and granted the presence or not is a matter of quality of life rather than life and death but there is no way she would have agreed had we not had that previous relation of trust which had built up over time.

In the adult teams where I previously worked, there would be no time allowed for that. A refusal of services is one less assessment you need to do – and I don’t mean that to sound cruel, it isn’t meant to be – but just that the levels of workload don’t allow you to go back and try and catch anyone who might fall through the net.

Sometimes people don’t want what ‘professionals’ think they should have and that’s fine too. The Mental Capacity Act speaks explicitly about the right to make ‘unwise’ decisions although one persons’ unwise decision is another persons’ fully formulated plan. The provision of this clear statement is to ensure that professionals don’t become too prescriptive in making decisions about whether someone might have capacity or not. There are many decisions everyone makes on a day to day basis that aren’t scrutinised in the way that people whose mental capacity might be being questioned would be scrutinised and it is about shedding pre-made assumptions (apart, of course, from the assumption that everyone has capacity as a baseline).

But back to the Wolfs. If there is one thing that I hope can be taken from this it is that social isolation doesn’t just happen in big cities. It can happen in small rural communities too.

Keeping an eye out for neighbours and  acquaintances is worth more than formal care services.