Ethical Practice in the Face of Cuts

How can I compute the process of going into peoples’ homes, often relying on good relationships which have been built up over weeks, months or years and telling them that there is no money left, that services need to be cut with my ethical compass and my adherence to a code of practice for a profession which has, at its heart, a struggle for social justice?

It’s something I’ve been toying with mentally over the past few weeks and months. I suppose in some ways this post is an attempt to become an apologist for my own practice but while I know many would argue against my justifications I can’t honestly afford to throw away my job so what can I do to ensure that my moral compass is retained.

Well, I can do my best to advocate. I can tell people about complaints procedures and urge them to use those self-same procedures to make their voices heard. Maybe when council members see the letters flowing through their respective mailboxes from constituents they will pay heed to the effects of the decisions they are taking but I’m not confident that many will take that path. Complaining, unfortunately, is too closely associated with negativity. It shouldn’t be. A complaint is, in some ways, the best way of learning about what a service needs and lacks. I wish everyone complained more. I have been subject to a fair number of complaints over the years and after the initial jolt of damaged pride, I honestly think they have been extraordinarily helpful in the long run.

The last complaint I received which referred specifically to me was from a woman I had been seeing for a while and we went through the process together of setting up a personal budget and support plan. The indicative budget though, was not enough to provide the services that she felt she needed and so the support plan was lacking in some areas that she felt were important to her – simply because there were limited resources. So she complained. She complained that I had not been able to meet her needs and also that I didn’t visit her often enough.

By the time I had explained my actions to my manager and written a draft response to the complaints department, I had been able to give everyone along the way an earful about exactly why I felt the process of determining an indicative budget from a Self-Assessment Questionnaire was fundamentally flawed and discriminated against people with mental health needs.

Her complaint gave her and others like her a louder voice.

I object and shout and discuss the processes that I see within the local authority systems but I still implement them. Does that make me less of a social worker? Again, other issues that I ponder aloud. I have tended to think that outside statutory services one might be able to take a more idealistic view but the building of competence, relationships and understanding within statutory services are a key part of the role as well.

Interestingly, when I think about the moral dilemmas of my work and how I practice, it is far more the issues that come up on the care management side that vex me because they are about the scarcity of resources. It might be more obvious for me to think about the controlling statutory role and power that I have as an AMHP (Approved Mental Health Professional) to deprive people of their liberty by making applications to detain them in a psychiatric hospital without their consent.

I find that part, ironically, a little easier to equate with my role due to the best interests aspect and knowledge that decisions that I make under the Mental Health Act as an AMHP are ones that I, alone, am responsible for and in that role I am not a functionary of a local authority machine but I am responsible for my own decisions to admit or not to admit.  While there is, without doubt, an ethical dilemma present in almost every compulsory admission, it feels different when I am solely responsible for taking that decision and can weigh up the issues myself.

So is this post an apology for the actions I take on a day by day basis in being an instrument of some of the harshest cuts in the social care systems? Yes I think it is.

As much as I strongly disagree with the way that the cuts have been weighted against those who have least, I am still instrumental, amid growing caseloads and shrinking resources in being the front ‘face’ of them to many people I know and who know me. I’m the one who tells them respite services are closing. I’m the one who tells them they have to have a pre-cooked meal delivered rather than a carer actually making a meal for them.

If everyone had what they needed though, it would be a delightfully easy job.  As it is, I continue in my role and yes, complain about it, but try and use all my energies outside my work to take the  fight back to the politicians and the officials who rely on people like me to implement the cuts they decide on behind the closed doors of power amongst themselves.

I genuinely think that it is not possible to be an effective social worker without a thought or concern for promoting social justice and both equality and equity of resource distribution.

And with that, I try to ease my struggling conscience.  It is a struggle though.

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!).

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.

To Section – as a verb

Is ‘to section’ a verb we should be using? My understanding and instruction was always that we should try, if at all possible, not to refer to ‘sectioning’ someone.

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It seems a bit flippant. It seems to imply a decision made. I know these are values I am attributing to the words  but I can’t escape the discomfort I feel. Then, on the other hand, it is a word that describes a process in a way that is understood.

I know that is not a rational response to reject a word out of hand but I feel quite strongly about the process and having seen regularly, the distress it causes at close quarters, trivialisation is the last thing that should ever come to mind.

This occurred to me yesterday following a discussion with a nearest relative when I was explaining about the assessment I was going to be undertaking.

Just for the record, none of the pieces of conversation below quite matched the way the ‘real’ conversation went yesterday, but they are parts of conversations I’ve had with a variety of people over the past couple of years.

It’s one of the  tasks that I have as an AMHP (Approved Mental Health Professional) – and on a human level, it can be difficult. I am obliged as a part of my duties in setting up Mental Health Act Assessments to consult the relevant nearest relative in the case of an application for admission under Section 2 of the Mental Health Act and to consult and  ensure that they do not object in case of an assessment under Section 3 of the Mental Health Act.

There’s that ‘section’ word again.

Depending a little on the situation and whether it might be a person’s first assessment under the Mental Health Act and how close the family member actually is, you can judge how to pace the conversation.

‘I’m going to be carrying out a Mental Health Act Assessment of your mother’ Notice the difference between ‘mental health assessment'(which could be any type of more generic assessment carried out)  and ‘mental health ACT assessment’ (which is very specifically an assessment carried out in order to make a decision about compulsory detention in hospital). That’s the key difference and often it needs to be clarified.

That may be enough

‘Oh, is she going to be sectioned?’ may be a response if this has happened before.

‘Well,’ I might say ‘it’s an assessment so we don’t always know the result in advance’

Except some times it is a lot clearer than others.

That would depend on the circumstances and the lead up to the assessment.

We don’t consider Mental Health Act Assessments until all other possibilities have been expended but sometimes it might be someone we don’t know well or something might come up as a part of an assessment that we hadn’t known about in advance or it might just be a wholly inappropriate referral where some of the information given by a panicky care coordinator or family member isn’t quite what we see when we turn up on the doorstep.

Sometimes the prospect of being forcibly admitted to hospital is enough to ‘encourage’ someone who might otherwise be reluctant to engage with services.

If it is a first assessment or someone who hasn’t had any knowledge of the jargon and the way we things might work, I’ll explain in more depth the workings of the Mental Health Act and the bases by which we assess and what the implications are and may be. It depends on level of distress and what some of the precipitating factors might have been and how closely that person was involved – if it’s been possible to have some of these ‘lead-in’ conversations beforehand or not.

So this may have been discussed in great detail before this point arrives – but sometimes it would be someone who had been unknown to our services and with whom we had not had previous contact.

‘So you mean you’re going to section my mother?’

I try to reassure and often will tell the family member not to be frightened of the word itself. ‘Sectioning’. Being admitted to a psychiatric hospital for detention or rather admission, assessment and/or treatment under the Mental Health Act. It is scary. The thought of not being able to leave may be frightening but the stigma attached to ‘being sectioned’ is also frightening.

There are a lot of perceptions of what psychiatric hospitals may be like – and some may be exactly as they are perceived to be but most of the wards I admit to, I know the staff and I know the quality of the nursing care that will be administered. It’s easy to reassure someone of this but it’s hard to break through the preconceptions – understandably.

We also know the stories, we know the general perceptions of what ‘being sectioned’ might mean and the labels that might be attached.

I explain that the word holds all sorts of connotations but sometimes it is about legalities and above all it would be to ensure that we can provide the best care possible for the individual in question.

I explain that we conduct an assessment and that we do this in as humane and thoughtful a way as possible, always respecting the person and not making the situation any more distressing than it need be.

But sometimes it does need to be distressing. Sometimes the thought of ‘sectioning’ brings some of those images – as exist in general media perceptions – of someone being dragged off into the night to a hospital.

And you know, sometimes things do happen that way, I can’t deny it. Well, I don’t work at night as a rule (only if something from the day has dragged on) and there are  few times when I’ve personally been involved when the police have had to actually put hands upon someone during the process. It can happen though.

Usually the police are very sensitive. We have some excellent, sensitive and extremely professional police in our borough who are, for the most part, a joy to work with.

Duty of care. It comes back to that. It would be wonderful if everything we did could be done with consent but the nature of the job is that it is not.

‘So you’re going to section XXX?’

Not necessarily, I might respond – we are going to conduct a Mental Health Act Assessment and make a decision as to whether she needs to be admitted to hospital or not.

It sometimes feels like fighting a losing battle.

‘This is the social worker. She sections people’ One of my colleagues introduced me to one of the nursing students.

‘Well, I organise Mental Health Act Assessments where they are needed and make the applications for compulsory admissions’ I try, but that’s seen as me being a bit pedantic. I’m rowing against a tide

‘Yeah, that’s what I meant, she sections people’.

When I was a student, one of my practice teachers was a (as then) ASW. It seemed a faintly mythical task to me – and more than a little scary.

It’s less mythical now of course, as I’m carrying out the same role myself, in a slightly different incarnation. But it’s still scary. There’s still a thought that this assessment, this moment is something that will have a profound impact on the course of this individuals’ life.

‘When I was sectioned.. ‘

And the shame and distress that will cause to everyone involved.

It’s easy to reassure that it is nothing to be ashamed about and that we are ultimately concerned with our duty of care towards the patient and to ensure that the best possible treatment can be administered.

Or sometimes it isn’t as easy to provide that reassurance.

That word again – sectioned.

I see why we were told to try not to use it. It has so much weight to it. So many assumptions and fears attached to it.

But we also need to say it as it is sometimes.

‘Does that mean my mother might be sectioned?’

‘Well, people do refer to it as that sometimes, yes, but it is an assessment’.

And afterwards, when I report back

‘did you section her?’

‘She was admitted under Section 2 of the Mental Health Act’

‘So you sectioned her?’

‘Yes’. Sometimes it is just best to be clear.

You would explain the reasons, the rights and responsibilities of those involved and of the nearest relative. I don’t always get it right.  I try to put as much empathy into these conversations as possible.

But sometimes, often, the grief and distress, it cuts like a knife.

The GJ judgement and DoLs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A day in the life.. of Approved Mental Health Professionals

Today,  Deborah Orr in the Guardian has an article published today detailing a day out that she has spent with some AMHPs in the Camden Duty Office. It’s an interesting insight into the day to day work in their office and certainly worth a glance to understand some of the processes that we work with as Approved Mental Health Professionals.  And the Importance of Pink Forms..

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