Guest post by Lucy Bonnerjea: Care Homes, Round Two and Mental Capacity

This guest post was written by Lucy Bonnerjea, writing in a personal capacity. Lucy Bonnerjea was a civil servant for 20 years which included being the MCA Policy lead. She now works on MCA implementation. You can contact Lucy at Lucy.Bonnerjea@gmail.com.

ROUND ONE was the coronavirus epidemic in Care Homes. This has begun to be well documented: a concentration of very vulnerable people, living very close together. They were vulnerable for many reasons – because many need personal care, which means they are more susceptible to infection transmission; many homes did not have sufficient PPE; many sent and received residents to and from hospitals without any Covid-19 testing; many were and are staffed with support workers living in disadvantaged areas and themselves more susceptible to the coronavirus. While the deaths have been documented, the sustained care provided by many of the support staff, working despite their own fears, their own families telling them not to put themselves at risk on public transport and in work places without PPE, has not been documented. That’s a story for another day.

Where was the Mental Capacity Act during this time? Marginal at best. The MCA was trumped by Public Health requirements; which allowed or required ‘self isolation’ which translated into care homes closing their doors to families and visitors; often requiring people to stay in their bedrooms; struggling with reduced, anxious staff to maintain care. Feeding 30 people often without any kitchen staff; providing activities often without activities staff; facilitating regular skype and whats app calls to worried families; cleaning sometimes without cleaning staff; challenging remote DNAR decisions, providing health care that would normally be provided in hospital in order to protect people from infection; supporting dignified care for frightened, dying people. Not much scope for supporting personalised decision making.

But this is all easing now. Shops are opening; zoos are opening; some of the public can stay away overnight. So are things going back to normal in care homes? Are they returning to a more relaxed, person-centred, less anxious life? With supported decisions; carefully considered best interests decisions, human rights based care and support?

ROUND TWO has arrived. Round two starts with local authorities not eligible for furlough schemes; having lost a lot of their income during the lockdown; struggling to pay their staff.  Their HR and Finance staff discussing restructuring and down sizing. Equally anxious social workers, being encouraged to work at home and use zoom. Many authorities have block contracts with care homes which now have a lot of vacancies. Block contracts guarantee a given value of business to a service provider, over a set period of time, in advance of a service being given. Block contracts allow the local authority to obtain a cheaper per person price.

Block contracts in homes which have had a lot of deaths, mean – in financial terms – the ‘beds must be filled’. They can be filled, quite fast, by moving people into them. Moving people from a care home where the cost is higher to a care home where the cost is lower. This was not possible in the past on any large scale, as the overall number of vacant beds nationally in care homes was low. It is now possible. If, according to the Lancet (May 23, 2020), there may have been 20,000 excess deaths in care homes, there may be 20,000 empty beds.

Large scale forced moves may be prudent efficiency savings or they may be an abuse of the Care Act.  They may be both. The central theme of the Care Act – well-being – may disappear.

Where does this leave people who may lack the capacity to argue with financially driven decisions to fill beds that have been pre-paid? Who is going to use the Mental Capacity Act to weigh up the emotional and personal cost of moving what may be thousands of very vulnerable people away from their care homes and their staff who have known them and supported them in their journey into dementia and disability? Do we know how to measure and value the importance of familiar faces, familiar routines and familiar buildings? How often will social workers make the required referral to independent advocates that many people have the right to? How many social care managers will monitor whether these referrals have been made?

How much do we value the wishes of people who may lack the capacity to ‘weigh up’ the decision to move? What do we think of moving hundreds or thousands of people with learning disabilities against their wishes? How much of a say will families be given? Will we be forcing people to pack their belongings against their wishes? Will we be using force or will we be tricking people into leaving their care homes?

What is the role of the Court of Protection? Human rights lawyers? BIAs? MCA Leads? Independent advocates? Will social workers stand up and make professional ethical social work decisions? What is the role of the national MCA Forum? Will the Department of Health and Social Care provide leadership – monitoring and ask for transparency? Whose role is it, in 2020, to protect and empower?