Yes, it’s happened again. That’s my head banging on my desk again. Hot on the heels of last week’s case – is yet another ‘orrible case where a local authority has bunged somebody in a care home in the face of their objections and those of their family, no proper assessments of capacity or best interests, no proper consideration of less restrictive options, no authorisation under the deprivation of liberty safeguards and no application to the Court of Protection, etc etc etc. This time it’s Cambridgeshire, and it’s not a court case but a Local Government Ombudsman report.
The LGO found ‘numerous failures to comply with the Act and Code. In particular, there was no formal assessment of need or capacity and no formal best interests meeting’, and the LGO also highlighted poor record keeping as a concern. The LGO point out that failure to even consult with the DoLS team was a ‘serious failing’ on the council’s part. The council blamed the care home for not making a DoLS application, but the LGO pointed out (take out your pencils, lawyers!) that ‘under s25(7) of the Local Government Act 1974, any action taken by the home is considered to be taken on behalf of the Council and in the exercise of its functions.’
The LGO asked Cambridgeshire what consideration it had given to applying to the Court of Protection. Cambridgeshire said it hadn’t because Mrs N had agreed to the placement (even though their own records state that she and her husband objected) and because they had made an IMCA referral (there’s no discussion of what the IMCA said or did in this case). The LGO cited the case of Neary and ticked off Cambridgeshire for not ‘signposting’ the family to the Court of Protection to challenge the decision. Now, it’s good to see the LGO citing Neary, but I think the LGO’s reading of Neary is wrong. To expect the family to apply to court misses the point that the MCA does not give the local authority authority to do things like this without first seeking clear authority from the court. Sitting around and waiting for family to apply to the Court of Protection is in fact precisely what happened in Neary. We might also make an analogy to the case of Glass v UK, where the mother of a young boy objected to doctors treating him with morphine and the dispute became very heated. In that case, the European Court of Human Rights held that the hospital should have applied to court to resolve the dispute. They commented that although the family themselves could have made the application, ‘in the circumstances it considers that the onus was on the Trust to take the initiative and to defuse the situation in anticipation of a further emergency’ (para 79). In other words, public authorities have the skills, resources and expertise to make applications, and families not only do not have those things but are also in a state of emotional distress. To expect them to make an application is unfair. I wish the LGO had made that point; signposting simply is not enough.
The LGO found fault causing injustice. In addition to failings in relation to the MCA and the DOLS, there were also failings in relation to the Choice of Accommodation Directions as they failed to properly consider Mrs N’s preferred accommodation which would have been closer and misinformed her that they couldn’t pay a top up fee for respite. The LGO recommended that the authority apologise to Mrs N (although, oddly, Mr N is not mentioned – although it was him who was detained), organise refresher training for their staff and pay Mrs N £750 in compensation for her distress. I would say, that when one considers how the Court of Protection might have looked at this, Cambridgeshire got off lightly. I’m also a bit unclear about the future for Mr N – is he to stay in the care home? Is a return home now being explored?
There’s plenty of legal meat on them bones, but I’ll leave it to others to pick that off. What I am interested in here is some emerging themes in these types of cases, cases stretching back to JE v DE, through G v E, Neary and all the recent spate of ghastly cases I’ve discussed on this blog. To be very clear, what follows is not meant to be a description of ordinary social work practice – I have met many excellent social work professionals (including from Cambridgeshire and Essex). But these are some common characteristics that emerge in the kinds of cases I’ve been moaning about here over the last few years.
Over-estimating local authorities’ authority
A first, dominant, theme, is local authorities believing they have far more legal authority to act than they do. Check out this paragraph from the LGO report:
The Council says that when someone says their preference is to remain at home, arrangements for a placement in residential care would still go ahead if the social worker thought it appropriate. The Council would be acting unlawfully if it did this for someone who had capacity. If the person in question lacked capacity to decide where to live, the decision to move them can only lawfully be taken if a proper mental capacity assessment and best interest decision have been carried out, in accordance with the Act.
In fairness to the Council, and as I’ve grumbled about here before, the existing and new community care guidance does not make clear that they simply cannot do this. However, it is clear that not only can you not do this to a person assessed as having capacity (as the LGO points out), you also cannot do this do a person without mental capacity – as the judgments in A Local Authority v A and Neary make clear (which the LGO fails to point out). In the background to these cases appears to be a belief that wrenching somebody from their home in the face of their objections is a matter of social work judgment and discretion, not a serious interference with human rights that requires formal legal authority. As I’ve written about countless times before, this is a belief that is not contradicted in the Codes of Practice, or the Department of Health’s policy guidance on community care and safeguarding.
Discrediting family members
Another common theme in these cases seems to be belittling and trivialising the concerns of family, and discrediting them. Mark Neary has written on his blog about how his concerns about Steven’s care were dismissed as trivial. Complaints that Steven had been sent home in the wrong trousers, which did not fit him, prompted the local authority to write in an email ‘there’s always something or other with Mr Neary’ (how they must have squirmed when that was quoted in the judgment…). Yet, meanwhile, the European Court of Human Rights held in Stanev that not ensuring that people had their own clothes to wear ‘was likely to arouse a feeling of inferiority in the residents’ (para 209) and contributed to their finding of inhuman and degrading treatment – one of the most serious human rights offences under the European Convention on Human Rights (ECHR). Now, I don’t think it’s the wearing of someone else’s clothes that is the issue (I say this as a perennial ‘borrower’ of my husband’s jumpers). Nor is it even the occasional mistake in sorting out laundry and helping somebody in getting dressed (mistakes happen, although systematic uncorrected mistakes are a different issue). It is the existence of a culture that holds that to want be dressed in one’s own clothes, in clothes that fit – something that is important to most people in their everyday lives and a core part of our identities – is a ‘trivial’ concern. This culture of trivialisation of matters that most people take for granted is what is capable of arousing a feeling of inferiority.
This pattern of trivialisation emerged in this case too. Mrs N – Mr N’s wife – was especially concerned that the care home that Mr N had been placed in was far away and required her to take two buses and took over an hour each way. She asked again and again for a closer care home placement, as did her family, but the council recorded the concerns of these ‘angry women’ (as their records described them) as ‘trivial’. This ‘trivialising’ of concerns appears to be a way of professionals distancing their responsibility for seriously distressing interferences in people’s lives, and failure to recognise that things like home and routine and contact – the very essence of Article 8 if you like – are important. Painting understandably upset and frustrated relatives as ‘angry women’ is frankly the oldest (and most sexist) trick in the big handbook of discreditation tactics, closely followed by ‘overbearing parent’.
Other discreditation tactics include painting family members as deceitful and perhaps even villainous. A large number of these cases – G v E, the Milton Keynes Council case and the Somerset case stand out – have ‘safeguarding’ allegations in the background. These are not always properly investigated; once a person has been saddled with the label of ‘abuser’ that seems to drive the process. Further events are interpreted in that light, there is a serious risk of confirmation bias.
In Neary and in this case, the family were said to have under-reported the level of ‘incidents’ at home. In Neary, this suggestion was rejected by Jackson J, who suggested instead that the high level of incidents in the care home was because of Steven’s distress. Yet even if families do under-report incidents, it is hardly surprising if they are trying to resist authoritarian and officious (not to mention unlawful) interferences with their fundamental human rights… A little sympathy for their position would go a long way. Yet, in order to justify these interferences, their views – which are at threat to the authority’s plans – must be discredited, and so they must be too.
Most famously in Neary, but also in this case, local authorities may deceive people regarding plans to move them back home or (in this case) closer to home. Interestingly, in both cases the move to a care home began as respite – a ‘temporary’ state of affairs – and then became a refusal to allow a person back home. This circumvents issues around conveying a person – as they and their families may comply in the belief that it is temporary.
Presumably these deceptions are an attempt to neutralise their complaints. Or perhaps they are white lies, which social workers believe are working towards the greater good. I suspect (I hope) it is probably not as devious as a deliberate attempt to prevent them from formally challenging decisions. And yet, whatever the intentions, the effect is that the local authority retains considerable power without challenge, because what has to be challenged is either not known or is unclear. At times this feels like a form of gaslighting abuse, where families may start to question their own reality. When Mrs N in this case told the local authority that she had found a care home, been to see the bed with her own eyes, they told her that there couldn’t be a bed because the social worker had rung up all the homes in that area and there weren’t any. They did not ask for the name of the care home and contact them to check it out – they questioned the veracity of her claims and her ability to do independent research into ways to meet her husband’s needs.
Treating people as the ‘family dog’
This is a huge bugbear of mine, and I have to say it is not just local authorities that do this, but – to some extent – the LGO themselves and the courts. The focus is so often on what happened to families, and how families felt about their relatives’ arrangements. And that is very, very, important – both as individuals in their own rights, but also because the person’s welfare is intimately linked to their own. But, at the end of the day, it is the person themselves who has been detained, who has been removed from home. The LGO’s focus in this case was on Mrs N’s objections, Mrs N’s anxiety – and clearly that is right, but ultimately, even if Mrs N had been happy for her husband to move into the care home, he himself was objecting. The injustice was against them both.
I worry that sometimes the take home message from Neary has been that families get to decide where people live. And that isn’t the take home message at all. The take home message is that if local authorities (or health authorities) try to impose living arrangements on a person and either their families or they object, then they need formal legal authority. It is not the case that if family are happy and the person is not, there’s nothing to worry about. They are not the family dog, they are not a possession. Deprivation of liberty and Article 8 are not about the severance of familial authority, they are about the person’s own rights to self-determination, and to enjoyment of home, family and private life.
Shoddy or non-existent investigations
Shoddy or non-existent safeguarding investigations form the backdrop to cases like G v E, the Somerset case and the Milton Keynes case. Another common theme is failure to properly investigate the alternatives. In Neary the best interests assessor point blank refused to consider the alternative of a return home. In last week’s Essex case the alternative of a return home was not properly investigated. And in this case, I’ve no idea if a return home was properly investigated because the report doesn’t say, but what the LGO does make clear is that the social workers did not make sufficient efforts to find a closer care home, to facilitate more regular contact. It does not report what support options they looked at for a return home.
Calling the Rozzers…
One of the things that stood out to me in this report – and instantly reminded me of JE v DE – are threats to families that if they try to remove their loved ones from the care home, the care home will call the police. This has a number of effects. Firstly, families may believe that the care home has authority which they simply do not have to prevent removal from the home. Secondly, it paints the family as potential criminals of some kind – warranting police involvement for the offence of wanting to go on an outing with their loved one or bring them back home. It reinforces the discreditation of families I discussed earlier. Thirdly, it is a frightening suggestion, and may well deter other efforts to try to challenge the authority of the council and the care home.
However, these cases set me wondering: what would the police do in these circumstances? Do they have a policy or guidance on returning people to care homes if the care home asks for it? What about preventing family from taking their relatives out of care homes or hospitals – either temporarily or permanently? What is their understanding of the powers of a deprivation of liberty authorisation in relation to taking and conveying and returning a person home (a hotly disputed topic!)? Just over a year ago the Daily Mail reported (yes yes, I know) that the police were called when the family of Minetta Webb took her home from hospital, and the police described this as abduction. Apparently, on the back of the DoLS authorisation (which the family claimed not to have known about – so goodness knows what happened there…) the police threatened to boot down their front door and take Minetta Webb back to hospital. Do the DoLS really grant the police that kind of authority?!
What I find striking here is the positioning of the family as ‘abductors’ when they are taking somebody home, or even just on an outing. Because another reading of cases like this, cases like G v E, is that the local authority are themselves complicit in abduction. Has anyone thought of calling the police in these circumstances, to complain about kidnap and false imprisonment by a local authority? I wonder what would they would do?!
Anyway, if anyone (@mentalhealthcop I’m looking at you) does know of any police guidance or policy on the MCA and the DOLS, particularly around taking and conveying and returning people to care homes or hospitals, or indeed returning them home from care homes or hospital without legal authority to detain them, I would love to see it.
[Update: on that last question, see the comment from Mental Health Cop (aka Inspector Michael Brown) below. Also, Mark Neary says he did call the police, and they said they couldn’t intervene:
— Mark Neary (@MarkNeary1) January 28, 2015
— Mark Neary (@MarkNeary1) January 28, 2015
The police are apparently working on new MCA guidance now, and I’ll post it here as soon as it’s published.]