Guest post from Lorraine Curry: Liberty? – Protection? – Safeguards?

Lorraine Currie is a social worker, Best Interests Assessor,MCA/DoLS Lead and provides Independent MCA Consultancy. The views in this blog are her own, not those of any Council, any region or any membership organisation. 

Having gone on holiday immediately after the Mental Capacity (Amendment) Bill was published I had to do my best to follow the unravelling news and views on a small IPhone screen!

On my return, I’ve just about cleared my inbox, caught up with most posts and for cathartic reasons I need to join the ranks expressing their first thoughts.

I think everyone who has expressed a view so far has been shocked at the plot twist between the Law Commission draft Bill and this Bill. Guess what? The Care Home Manager did it! A surprise for most people and an unexpected one, not covered at all in the extensive and thorough consultation carried out by the Law Commission.

I met yesterday with DoLS Leads from my region and found everyone feeling very deflated. What has for the last 8 years or so been a forum for raising standards, improving practice and striving for excellence, felt like a place of semi despondency. We are wondering, why we bothered. I am sure this is an initial emotional reaction but nonetheless it is a genuine reaction.

If I could summarise my concerns they are about Rights, the position of public authorities being held accountable for the decisions of others, the conflict of interest between detainer and detainee and the capacity of Care home managers to deliver what is being asked of them.

There is a view shared by many, sadly, that DoLS did not add any value to a person’s life and was/is invasive and intrusive for families, overly burdensome and not cost effective. I don’t share this view. I can honestly say that for every person subject to DoLS I have the sense that at least someone independent of the place where they are detained, has had a really good look at their situation. Families regularly say this.

The Best Interests assessment is a focussed and thorough assessment and the consultation (especially with P) is essential. Does it yield any fruit? In my honest opinion it does but I agree that for maybe 60% of cases ( this is not a scientific figure it’s just a feeling) the only fruit it yields is its own process, the independent oversight, the place of last resort, the final chance to look at less restrictive options and the technical legal approval required by DoLS.

For the others there is substantive fruit. This might be small changes suggested to the care home, who often seem to need an independent suggestion in order to try things. It might be environmental, it might be looking at the person’s hobbies and interests and accommodating these to minimise their sense of detainment or it might be a wholesale decision that this is not the place for them, resulting in the final push to get them home. I can think of so many over the years, key people who would still be detained in care homes were it not for the DoLS process. I can also still recall the words of a family member telling me that his father lived his last two weeks of life with freedom because of the intervention of the BIA getting him moved to a downstairs room.

So yes I am sad. I am sad because I do not, hand on heart, at this stage feel the new Bill delivers the same.

As I write, I wonder just how much of each of the key words are actually represented in this Bill, that is; Liberty, Protection and Safeguards?

Liberty – Does it deliver anything in terms of Liberty? In my opinion liberty is being free from arbitrary detention. We have translated arbitrary to mean Independence is needed. I have seen so many arbitrary decisions uncovered by the DoLS process especially for those who fund their own care and are taken to care homes by relatives, whether they want to go or not and are often of the view that it is just for a short time, when in reality it is for ever and the house is being sold imminently. Do I think this Bill which provides for the detainer to assess the detainee, the care home manager (who may also own and financially benefit from the care home) to assess whether this admission is necessary and proportionate, will prevent arbitrary detention? No I don’t.

I believe that we will have a two tier system. One for those in Supported Living, Shared Lives, Group homes (who are more likely to be younger people, possibly with learning disabilities or brain injury ) these people will have the assessments carried out (most likely) by a social worker, a professionally qualified person as part of care planning. There will be another group in care homes (who are most likely to be older people with dementia) and these people will have the assessments carried out by those who may stand to benefit and those for whom there is no requirement to be professionally qualified.

I am concerned that this will simply return us to pre DoLS days. Liberty is essentially tied to the question, arising from Article 5 of necessity and proportionality. We delivered training to BIAs last year and it continues this year, looking at the question of necessity and proportionality. It is another extremely difficult concept. I note from the Bill that the previously wording has been omitted around this so we now do not know “necessary” because of what and “proportionate” to what?

Currently a BIA considers whether depriving liberty is necessary to prevent harm to the person and proportionate to the likelihood and severity of harm. I am clear why this has been omitted, in order to be permissive rather than prescriptive. In other words rather than tackle head on whether harm should be to self or whether it should include harm to others, by taking it out, everything is possible.

Many may see this as a positive move and in time it may well be a positive move. I don’t know how I would go about assessing whether something was proportionate without a frame of reference. Especially if I am a care home manager who has not been trained to do this and I am sure doesn’t want to do this. Liberty is permitted to be deprived where it is both necessary and proportionate but the Bill provides nothing at all to measure that by.

Protection is another key word offered here, but what protection is offered? Assessment in care homes by someone who the manager considers to have the necessary skills and appointment of an IMCA or appropriate person as the Care home Manager decides (with the Local authority not seemingly able to appoint an IMCA without this instruction from care homes) The Bill is completely and utterly blank on the issue of Rights. It does not even include consultation with P in the list of people to be consulted.

DoLS places the emphasis on the person’s best interests and this is the most complex part of the assessment process. This best interests analysis involves analysis of risk and harm and involves consideration of less restrictive options. These might translate to things such as the following – a 30 year old woman with good verbal skills was sharing a care home setting with 3 others all male with no verbal communication. The intervention of the BIA resulted in a change of placement. Protection often comes with DoLS by challenges to the care home documentation and most commonly to risk assessments, many are not updated or have been in place without review for many years. Somehow the intervention of an independent outsider allows the care home to look again at their risk assessments, to consider whether restrictions can be reduced and other measures can be tried. Many times I have seen this to good effect – a young woman with very difficult night time behaviour who was monitored by an Infra-red camera in her room so as not to wake her unnecessarily. After the DoLS assessment this was replaced by a simple pressure mat. A lot of work will be required to establish the necessary detail in the Code of Practice to ensure that protection is provided.

Although the Bill is about the protection of P there is an element of additional concern to me and that is the vulnerability the local authority will be in if this is enacted as written. The plan that someone else conducts assessments on which the local authority must rely and yet it is the Local authority who will be sued in the event of any challenge. This poses a high risk to local authorities. The closest analogy I can think of is that restaurants are asked to inspect their own kitchens and provide the local authority with a draft food hygiene certificate which the local authority then sign but if mice are found in the kitchen it is the local authority who are sued.

The MCA has a key concept of Decision Maker and I think this Bill confuses that role significantly. If the LA is placing a person in a care home, they are the decision maker and therefore they would assess capacity and rely on that assessment subsequently as defence for their actions yet this Bill will require the Decision Maker to rely on the defence provided by someone else, the direct care provider.

Safeguards – Let’s look at the safeguards this Bill provides. Article 5 requires that anyone detained is informed of their detainment in a manner they can understand. The Bill does not even require that P is given a copy of the Authorisation record. It does not require that P is told of the options to appeal and I see the appointment of IMCA and the identification of objection to be significantly watered down. The Bill requires the care home manager to say whether the person is objecting, not objecting or they can’t tell whether they are or not! This is where the detail ends. The identification of objection and the need to challenge via the Court of Protection is an extremely complex decision. Two key Court cases explored this in detail with guidance being given by a Judge to help BIAs and advocates interpret objections. Care home managers are going to be expected to make these decisions after a half day training course. BIAs are experienced social workers, nurses, Occupational Therapists and psychologists who are two years post qualified and then have BIA training. They struggle to correctly interpret case law and make the difficult judgement call about objection. Is it fair, right or proper to ask a care home manager to do this? As this is the route to being assessed by an AMCP this is essentially the key safeguard.

 

I know that this Bill is a reaction to the short but intensely difficult legislation which gave us DoLS. Far too much was in primary legislation, even down to content of forms. This meant when Cheshire West hit we were not easily able to respond and the Government were not able to ease the burden without introducing new legislative changes. I am aware that this Bill seeks to avoid getting into that same mess by being permissive and high level with the detail being contained in a new Code of Practice. I agree this approach can be helpful. However some important details in my opinion must be in primary legislation and some of these must be to consult P, to inform P of the outcome and to explain to P their rights.

This Bill in my opinion unbalances the public law duty on local authorities. It is for the LA to assess need, produce a care plan and commission services and yet they will now be reliant on care home managers producing assessments in order to be able to proceed in situations which amount to a deprivation of liberty. What will most likely happen in practice I suspect is that we would complete the assessments, give them to the care home so that they can give them back to us!

Is it all doom and gloom? No it isn’t and I don’t want to give the impression that I am opposed to all of this Bill. There are many good things in here. It has provided a simplified process of proportionate assessments, without being overly prescriptive about who can assess, a simple pre authorisation review and approval and in the case of any objection that review being carried out by an AMCP. It attempts to focus resources to those in most need and leaves the door open for practice to develop around the AMCP role. This simplified process will I am sure be preferred by social workers who are currently doing “community DoLS” It provides authorisations covering multiple settings and allows for transportation and by implication (although not stated) for return of those who may leave.

In many ways it is more simple, clear and straightforward than the Law Commissions previous version. I feel that there are some key amendments which will improve the Bill, particularly by strengthening rights.

Do I think that this is something which care home managers should be doing, “No I don’t” but do I have a workable and affordable suggestion to put forward instead “No I don’t”. So where from here?

I believe it is for those affected to canvas as they see fit and I look forward to seeing the reactions of care providers. For my part I will attempt to contribute to achieving amendments to make this workable and to deliver safeguards which promote liberty and provide protection.

Despite the critique I have written I will be working to ensure that the excellent practice which we have built around DoLS continues into this new scheme, I will  be very keen to contribute to a Code of Practice which really does add the much needed detail, I will be looking for ways to incorporate what we know and what we have learned so that others don’t have to learn it afresh and to see what is salvageable from the existing scheme (will an Authorisation record look much different from a Form 6 for example?) and I will be working with others across the regions to ensure we share learning and improvements for the benefit of all, mainly for those living in the shadow of Cheshire West.

Lorraine Currie

26/07/18