The conclusion of the recent scrutiny of the Mental Capacity Act by the House of Lords’ Committee was that the Act is not ‘working‘.
The evidence presented showed that the Act has not been well implemented; the processes required by the Act are not widely known and have not been adequately or consistently followed.
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However, three cases concerning the issue of care home care vs. care at home, for people losing or lacking capacity, have been forcing awareness of the MCA on a reluctant health and social care sector. These cases also have significance for some people with learning disabilities and their relatives.
In RGS (No 3), RGS suffered from vascular dementia. He had been living in his own home until he was admitted to hospital and subsequently moved into a care home. Legal proceedings had ensued with allegations of neglect and self-interested interventions by RBS, the adult son, in his father’s life. After a best interests finding that he should live at a particular care home RGS was then assaulted three times by a fellow resident, who was ultimately removed from the home. The Court felt it should review the arrangements.
The son argued that his father passionately wanted to return home and that the Council should pay for home care until compensation was awarded to the man for unrelated flooding issues. Yet all independent visitors to the home stated that RGS was content where he was and that he had not expressed any wish to live elsewhere; they felt that transferring him to a different environment would be likely to make him more agitated.
The Official Solicitor and the Council were satisfied that the home was now safe for RGS and other residents. The Court accepted that the very clear balance of the evidence indicated that it continued to be in RGS’s best interests to reside there.
The judge said: There is no practical alternative. He suffered neglect at home. His son’s actions would make a home care package unsustainable even if it was affordable. The financial feasibility of a return home was explored in 2013 in deference to RBS’s wishes. It was not feasible. The position today is the same. If W Cottage is not sold, RGS has debts which cannot be met, of £199,908 (much of which ironically and tragically relate to his son’s actions). Therefore, W Cottage must be sold. The Official Solicitor was correct to say that the option of residence at W Cottage is ‘not remotely affordable’ even if it was otherwise feasible. It is not appropriate for RBS to be appointed as his father’s deputy for property and affairs, in place of the county council. The conflict of financial interest is too great and his previous unauthorised dealings with his father’s assets make this impractical.
In the next case involving Westminster City Council, Manuela Sykes,* an ex-Labour MP suffering from dementia, had been deprived of her liberty in a care home under a DoLS authorisation. On numerous occasions she expressed a wish to return home, where she had lived for 60 years.
Ms Sykes had appointed an attorney for property and affairs who supported her objection to residential care. She had stated in her Lasting Power of Attorney that ‘…I would not like my attorney to sell my property. My wish is to remain in my own property for as long as this is feasible’.
The local authority’s evidence was that Ms Sykes would not accept care; she had altercations with her neighbours and others; she self-neglected; her living conditions were unhygienic; she had lost a significant amount of weight; she had been found wandering and had a lack of awareness of her own personal safety.
The local authority submitted that if 24-hour care and supervision at home was a practicable alternative, the woman would not be able to finance it for more than a few months. She had no spouse or children or any willing and able volunteer to offset the cost.
Limited resources
The local authority said they could not afford and would not fund such a package of care given that residential care was appropriate to meet her needs. It argued that it was for local authorities, not judges, to decide how to allocate their limited resources.
With MS’s continued opposition to the nursing home, despite the DoLS, the local authority sought the Court’s review of the standard authorisation.
The judge concluded that all the standard authorisation requirements were met. With her short-term memory lasting less than a minute, MS was unable to retain and weigh the information relevant to the decision and thus lacked capacity.
The judge also agreed that MS was being deprived of her liberty as a matter of law and stated:
MS is readily given permission (leave) to go on outings with her friend RS, and the routines at the Nursing Home are benign… However, it has not been argued that she is not deprived of her liberty, or that she is simply residing there in the same way as someone subject to guardianship under the Mental Health Act. This is because of the strength of her objections to living at the nursing home, the fact that she is effectively prohibited from even visiting her own home, that it will be sold and she will have to live out her life in residential care, unless the standard authorisation is lifted.…Patently she is not free to go home or visit her home and the state claims legal power to control her liberty and movements indefinitely, not simply to define a place of residence for her; therefore she has been deprived of that usual liberty which the rest of us enjoy. No aspect of her liberty of movement remains under her own control.
The judge met Ms Sykes at the nursing home and undertook a carefully considered analysis of her best interests. In his view, it was in her best interests for a one-month trial period at home to be attempted, the local authority having been persuaded to agree to put in place a transitional plan.
This shows that even if all the thinking behind a DoLS has been done correctly, one is still able to challenge the authorisation and have the Court of Protection make a decision of its own, not merely a review decision, about best interests. It also shows that the Court had long since accepted that Cheshire West could not stand, even before the Supreme Court issued its decision restoring a rigorous approach to the question whether the relevant regime constitutes deprivation of liberty.
Breaking down
The acknowledged risks of the care package breaking down identified by the Council were outweighed by other reasons.
If a trial is not attempted now the reality is that she will never again have the opportunity to live in her own home. Her home will be sold and she will live out what remains of her life in an institution. She does not want that, it makes her sufficiently unhappy that sometimes she talks about ending things herself, and it involves depriving her of her liberty.
The judge also noted MS’s Lasting Power of Attorney (LPA) in which she indicated a wish to remain in her own property for as long as ‘feasible’ and in general that she prioritised quality of life over the prolongation of life.
This case chimes with KK v STCC in which an unwise decision to refuse residential care was upheld as the judge ruled that the lady concerned was not incapacitated. The Council’s staff had not acted compliantly with the MCA and been open and up-front about what they would offer were the lady to be adamant in her refusal of care in a care home. The judge there used the words ‘all practicable support’ as the notion of what was open to and necessary for a council to acknowledge that it would still provide in those circumstances.
In this case, the concept of what is practicable was explored in the context of a person who has her own means to pay. If people stay at home for as long as possible and pay for the necessary care themselves, they can hardly be said to have deprived themselves of their assets to avoid paying for care because it will be care they’ve spent their money on!
This case makes it impossible for councils to say that the relative cost-effectiveness of residential care and care in one’s own home is the ONLY determinant of the legitimate options to offer to a person in this situation; or to say that they can determine what a person should spend their own money on, if they have appointed an attorney.
Ms Sykes has indeed had a great influence on the prospects of preserving personalisation and choice, in adult social care!
In the third case, UF had moderate vascular dementia. After detention under Section 2 of the Mental Health Act, she was placed in a care home under DoLS provisions. The best interests assessors in their reasoning had had regard to the longstanding and current disputes between UF’s children.
UF’s daughter (‘D’) was of the view (having seen her mother on a regular basis) that her mother had the capacity to reach the relevant decisions and reported that her mother had expressed to her in strong and worrying terms that she did not want to be at the care home. In her view, her mother would be much better placed back in her own home with an appropriate care package.
But UF’s other children felt that it was in their mother’s best interests to remain in the care home.
Inappropriate
Applying Rule 140 of the Court of Protection Rules, the judge found it was inappropriate for D to act as UF’s litigation friend as, on the evidence, she had apparently been unable to take a balanced and even-handed approach to the issues. The judge held that this was a case that required the independence of the Official Solicitor to address both UF’s capacity to litigate and her ability to make the relevant decisions.
In this case, there were siblings with a consensus that their sister was not acting objectively, as opposed to a holder of an LPA who had been given specific requests not to spend the money on care home care, by the donor – and in the RGS case, a son with a history of dubious interventions.
In Sykes, a trial period back home was ‘offered’ by the Council under pressure from the Court, and this meant that the DoLS order was shown to be unjustified; in RGS, the judge was clear that there was no way the father could be said to be better off, under the care of his son – whereas here in UF, with warring siblings and no one of them with any higher authority than any other, the evidence was finely balanced. So a way had to be found to continue the judicial authorisation of deprivation of liberty, without defeating the person’s right to legal aid.
*The Press had made application for permission to name MS in press reports. The judge decided that lifting the usual veil of anonymity was appropriate. “MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. What she has done with her life indicates that she has always wanted to be ‘someone’, to have influence. Realistically, this is her last chance to exert a political influence which is recognisably hers – her last contribution to the country’s political scene and the workings and deliberations of the council and social services committee which she sat on.”
Who is responsible for compliance with the Act?
Who is responsible for compliance with Human Rights rules, or the national Choice Direction for care home placements, or the public law principle that written reasons should be given for any council’s refusal to find someone eligible?
These are all principles already clearly enshrined in the public law of adult social care but they are not taught on social work college courses; they are not part of fitness for registration as a provider, and they are not used as a medium for discussions with alleged perpetrators of adult abuse (who are often best interests consultees as well, being highly interested in the welfare of the alleged victim) and are often unknown, even to senior managers.
The people responsible for respecting these principles are individual professionals, Boards and governance officers in all public bodies throughout the NHS and social care; the College of Social Work in its curriculum requirements; university lecturers, the CQC and other professional regulators, SCIE, Skills for Care, ADASS and all local authority lawyers and advocates, deputies and attorneys.
However, the Lords Committee’s preference was that overall responsibility for the Mental Capacity Act should be given to a single independent body, to make an annual report to Parliament on the progress of its activities – not acting as a regulator or inspectorate but working closely with all such other bodies…
The Committee found that the government’s Mental Capacity Act Steering Group was a welcome first step in this direction and recommended that it be tasked with considering in detail the composition and structure of the independent oversight body and where this responsibility would best be located.
Is more dithering really the best that England can do, faced with widespread disregard of mandatory legislation? To date, judges seem to be doing far better for incapacitated people dependent on social services funding and arrangements than the Department of Health and other sector leaders.
What hope is there for proper implementation of the Care Act if the sector embraces only the cheapest, most basic form of training for April 2015, merely facilitated reading of government guidance itself written, like the DoLS Code, to obscure that it is LAW that underpins best and necessary practice and policy?
Belinda Schwehr is a trainer and consultant in Care and Health Law. Her website offers a FREE option of getting news and developments in ten legal and policy issues. Go to: www.careandhealthlaw.com
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