Category Archives: Assessment and eligibility

Confusion over health budgets and health direct payments for people lacking capacity

I have had this enquiry in from an anxious parent:

“Despite caring for my son for 31 years with no problems concerning receipt of payments from Social Services and the ILF I have now been told that a Power of Attorney or Court Protection Order is required by our Health Trust in connection with payment of a Personal Health Budget for his care.

A solicitor has informed me that the first option is a no-go as he does not consider my son to have mental capacity to complete this, leaving a Court of Protection Order as the only option.

I am absolutely flabbergasted at this situation, especially having been told this will cost around £3,000.

When benefits are paid on the basis that the claimant needs the amount paid to live on and doesn’t include extra to save, it seems that responsibility for payment falls on me, my son’s main carer, who is unable to work due to the complex care he needs.

I would be very interested to hear any comments regarding this situation, in particular from anyone who has been in this situation.”

This is my response:

The advice is fundamentally incorrect, in my view, but for complicated reasons.      So stick with it if you want to save £3000!

First of all there is no way that a person in a position of parent for a person with undoubted incapacity, should ever have been GETTING Direct Payments from social services if the person on whom they were going to need to be spent lacked capacity to consent to having one, knowing what it meant – which was that the person with needs was letting the council off the purchasing hook, and taking charge of their own purchasing, and all the liability that goes with it. There is not a parent in this country with a son or daughter with significant disabilities who would actually accept that the son or daughter him or herself is really IN CHARGE. That was what was so amusing, with all due respect, about the admittedly well-intentioned In Control movement being called ‘IN CONTROL’ – because the common law has always treated it as too obvious even for discussion that a person lacking capacity cannot conceivably be regarded as being or made to take the consequences, of being in control of complex purchasing, or an employment liability. It was the person’s circle of support who was put in control by the national policy of rolling out direct payments regardless of mental incapacity issues, albeit for the best possible motives! A direct payment ALWAYS – even back to 1996, involved a person having capacity to consent.

From 2009 it was appreciated that this was causing difficulties and the status of Suitable Person was invented by the 2009 Regulations. This development meant that a person could be chosen or put themselves forwards, and then authorised by the council to take a sum of money in their own name for the benefit of the needy person. NOT, please note, in legal terms, on behalf of them, as would be the proper analysis, if the ‘managing’ person was merely HELPING a person with reduced but still fundamentally functional cognitive decision making capacity –  or if the managing person was a statutory agent for a person accepted to lack capacity. The regulations never went that far. These regulations constituted a formal set of rules about that whole question, which most councils (in my experience as a trainer) never got round to using properly, despite the obvious safeguarding implications.

HOWEVER – now that the Care Act and Health Budgets and direct payments for CHC are in force, both systems enable a person to be given the budgets to spend on another person, without formally being a deputy or an attorney.

The whole point of these systems is that a person need not incur the expense of deputyship or pretend that a person has got capacity to grant a power of attorney) in order to spend this type of care related money.

Any CCG saying otherwise, with respect, needs to read the governing regulations and get proper legal advice.

Anyone given this sort of a brush-off needs to write to the Health Trust and say that they do not believe that there is any justification under the National Health Service legislative framework (or to the council, mentioning the Care Act instead, if the person is getting a direct payment for social care or a split package) for insisting that a person needs the formal status of deputyship to have a direct payment; and that they believe that the regulations enable a person to be a person’s recipient of the budget, if the CCG [or council] thinks after proper consideration that the person is suitable. If the paying organisation regards the applicant as unsuitable, however, the organisation needs to give the applicant evidence-based rational reasons that are defensible in public law terms – as their stance, requiring deputyship or power of attorney – whether deliberately adopted or not, risks defeating the very purpose of the health budget/social care direct payment regulations…

But – please note, for comprehensiveness, that Deputyship doesn’t cost THAT much money either, even if one did apply for it via the Court. The benefit of going in for it would be that the applicant would then be legally authorised to spend other assets belonging to the incapacitated person and also sign contracts or tenancies in their name which is not what happens when one is merely authorised to spend the person’s Health budget or Personal Budget – because in THAT situation, one always signs contracts as principal ie in the recipient’s OWN name and not legally “on behalf of” the incapacitated person, using the direct payment to discharge the liability. If such an authorised person does a runner or misuses the money, then the contracting provider of a service, or the landlord, and even the paying council or CCG has direct rights of recovery against the dodgy person the organisation authorised, which is SO much better than treating the needy person as responsible for what the authorised person has gone and done with the money.

We have seen the same sort of issues arising with regard to tenancies for people put into Supported Living, in the undoubted interests of normalising their lifestyles but also saving councils money too, on the housing element of care – no attention paid to the legal niceties of the difference between a council’s placement and an individual’s contract of tenure.

NB ILF was different, by the way, because it was a grant from the government’s trust fund, and it could always be paid to a person FOR someone else – which is why councils often applied for it, for incapacitated people – and then used it to arrange care – so as to save money on the unmet need bit of the package that the council had to pay for, even though it sometimes made the person worse off financially, because of the different operation of the ILF and Fairer Charging social care charging regimes! A really interesting notion of conflict of interest there, in relation to best interests decision-making, some would say THAT was, but not now!

Why we’re still nowhere on getting autistics out of Assessment and Treatment Units and back into the community (2)

Placements are often justified on the grounds that behaviour which challenges needs to be addressed before community living is possible. But for many autistics this is backwards! Behaviour is communicative. Common causes of behaviour which challenges, in autism, are frustration and distress, due to difficulties with:
• communication
• uncertainty and unpredictability
• sensory issues

Most staff working in care have had little or no good quality autism training. “Behaviour management” typically focusses on reactive management and restraint techniques! It is little wonder that autistics stuck in these situations display distress in such an adverse environment. In institutions individuals are typically subjected to:
• change with little or no warning
• little control over their environment
• a highly unsuitable sensory environment
• constant interaction and demands
• very limited access to people with whom they can communicate effectively (e.g. family) or appropriate support for communication (e.g. AAC technology)
It is hardly surprising if this results in behaviour which challenges.

Effective training of community-based staff to enable them to actually understand and anticipate an autistic perspective is essential. We need to move away from ineffective and damaging “reward and sanction” reactive approaches to behaviour management. Creating workable community support is possible. It isn’t always cheaper immediately, but it is in the long run and this should be very motivating to local authorities and trusts. A good starting point is to look for providers who take an autistic perspective seriously and make use of the autistic community as a source of knowledge about how seeing the world from an autistic point of view can help enormously. Most behaviour which challenges can be prevented and avoided – but institutions are completely the wrong place to do it.

Community provision can work but only if it is staffed by sufficiently well trained and supported staff who have a clear and deep understanding of autism on a practical level. “Awareness” courses are not enough. Learning about the triad of impairments is not much use when faced with a distressed autistic who can’t use speech to tell you what’s wrong. The latest “products” on sale from the autism industry are also of very dubious value – check out first whether they are really as evidence based as they sound – there is a lot of “neuro”-rubbish being talked out there. Exercises to retrain developmentally immature reflexes are little help when faced with an autistic adult head-banging to the point of bleeding. Creating an autistic friendly environment, addressing communication, autonomy and sensory needs can be a good start to proactive behaviour management. But community staff need to have confidence in their skills and knowledge to be able to do that. It isn’t going to happen more widely until the entire social care sector begins to learn enough about autism to really understand that autism is a fundamentally different way of being and approach the needs of autistics with fewer assumptions and an openness to those different ways of thinking and being.

I’m aware of a few providers doing some fine work in this area, but we need more. We also need more willingness from local authorities to think outside of the box and consider bespoke packages with sufficient funding and support for training to ensure good quality PAs equipped with real world autism skills.

Why we’re still nowhere on getting autistics out of Assessment and Treatment Units and back into the community (1)

Welcome to my new guest blog on Belinda Schwehr’s ‘Schwehr on CARE’ and thanks to Belinda for inviting me.

I have to focus my first posts on what I see as the most pressing human rights issue in social care: the approximately 3,000 individuals (many and perhaps most of them autistic) still stuck inappropriately in long-stay inpatient care 4 years after Winterbourne View.

The Justice for LB campaign is seeking further legislation in an attempt to resolve the issue. Whilst I wholeheartedly support their aims, I can’t see the approach of passing more legislation working. Here’s why. We already have law which addresses many of the issues, but it is simply being ignored.

(1) There is still widespread failure properly to implement the Mental Capacity Act. Capacity is frequently assessed wrongly because:
(a) unwise decisions made by someone with a learning disability or autism are used as a basis to assume or evidence lack of capacity;
(b) insufficient information and support are provided. All practicable steps to help the individual make the decision themselves are not actually taken. This is particularly true in autism, where it is often due to ignorance of steps which could help;
(c) incapacity is assumed, based on one-off assessments, sometimes years previously;
(d) incapacity is assumed for one decision on the basis of incapacity in relation to another very different type of decision, without proper analysis of similarities or otherwise;
(e) assessments are too often based on the outcome of language-based IQ tests and in ignorance of the evidence that these may well not be a reliable approach to measuring cognitive ability in autistics.

(2) The Care Act already provides strong rights to be involved for adults themselves and for family (either in the form of those the adult asks to be involved or in the form of best interests consultees). There are rights to communication support/interpreters and provision for this to be a familiar person where this is the only way to achieve communication in the case of bespoke methods of communication (including behaviour only). The statutory advocacy duties are right there and properly qualified, independent advocates are the best possible support that people could have. So what’s the problem?

In far too many areas it just isn’t being implemented. It’s hard not to conclude that either local authorities are (a) ignorant of the law; or (b) simply hoping like mad that nobody else noticed.
What can we do about it?

(1) Know the law and push for independent advocacy when someone is entitled to it. Councils cannot lawfully assume that family members are suitable informal supporters and use their presence to avoid providing an independent advocate UNLESS both the adult needing support AND the family member CONSENT. Nor can they avoid advocacy by using family members or friends as informal support without THINKING about whether the informal person is actually able to carry out the role of supporting the adult’s involvement appropriately.

(2) Know the law and push for the provision of a communication specialist (as WELL as an advocate) where an individual communicates in a way that the assessor does not understand. This means those who communicate only through their behaviour, those who have echolalia, those who use PECS, AAC or bespoke systems. And THIS MEANS adults who may lack capacity – they have a legal right to be heard and to be involved too!

(3) Know the law and push for PROPER capacity assessments: decision specific and with all practicable assistance, including communication support, full information about all options and processing time.

(4) Know the law and push for fully lawful decision making where someone does lack capacity – in full compliance with the MCA. IMCAs, DOLS, best interests consultees (including family members and providers), proper respect for human rights and all the principles.

Belinda’s immediate thoughts about the new proposals about deprivation of liberty

I just listened to the Community Care webinar from the Law Commission’s Tim Spencer-Lane. It was useful, although my Chat box disappeared as soon as I clicked on full screen mode and would not come back. I logged out and back in again, in order to have a voice!

The basic thrust of the proposals is a widening of the notion of the need for special scrutiny for all packages involving elements of restriction, not merely deprivation of liberty. This would be called Protective Care. There was a definite undercurrent to the presentation, I thought, to the effect that the Law Commission thinks that this is  what should have been happening anyway, because of the special provisions in the MCA about restriction of liberty having existed since 2007, and judicial reviews long before then, and since, stressing the central importance of the care plan as the source of the council’s accountability for proper social work decision-making. And I would have to agree, I am afraid…

Now that the Care Act provides for more due process rights, within a linear customer journey, each with its rules and ‘involvement’ rights attached, and for formal s25 statutory care plans, the Commission may look as if it is proposing to broaden the burden for the sector, but in fact it is not, in my view.

Restrictions, or restraints within a care package, let alone full-on deprivation of liberty for a person’s best interests, should always have been properly assessed for, and care planned for, so that it could be specifically commissioned, and thus paid for properly, in my view.

I would wish to say as politely as possible that if the need for legal literacy and defensible decision-making in the statutory sector had ever been embraced and resourced by the DH, elected Members in councils and the leaders of the social work sector, and by the TCSW, the independent reviewer of adult social work education policy for the future, or the universities offering qualifying degrees, we might not have had to have had a House of Lords Select Committee slam the whole sector for non-implementation of the MCA, or be facing another 18 months of uncertainty about deprivation of liberty.

The link for the report Law Commission is here:

Providing protective care to people unable to consent to treatment

But for now, these are the questions that came to my mind, straight away, during the webinar.

  • Will the Approved Mental Capacity Practitioner (a new role and title for the BIA, as of now) be allowed to be from the same council as the commissioner of the care?
  • Is it appreciated that the approval of an AMHP, and presumably an AMCP, too, can and could always be pulled, by the authority which has granted it? I have seen this happen in practice when the independent thinking of the AMHP (an ASW, actually), upset the council?
  • How are medical professionals going to be obliged to do the independent objective assessments that are planned, outside of the hospital system? That is, in supported living, shared lives, people’s own home settings etc? It’s not in the GP contract, and it won’t be timely if it were just to be done under ‘co-operation’ provisions?
  • Clearly, since ECHR jurisprudence requires medical expertise for lawful article 5 deprivation of liberty, but not for article 8 mere impingements on liberty, that can be justified, we will still need to distinguish between restriction and deprivation, and the webinar did not discuss how we might do that. Indeed, it seemed to envisage objective medical expertise for the scrutiny of all protective care, and that would have an enormous impact on NHS time. Extending it eats into the s5 cloak of legal protection based on best interests decision making by ordinary individuals, as long as the MCA Code has been followed, and there would be debates between families and doctors as to whether what was going on was protective care or merely supportive care. This has undertones of the shenanigans that played out nationwide when there was a distinction between housing related tenancy support in supported living settings and ‘care’ inputs properly seen as adult social care, does it not?!
  • I groaned inwardly at the proposal to streamline advocacy from all statutory routes to entitlement, before Care Act independent advocacy has even got started, but can see it makes sense. But what I did not understand was whether people in protective care regimes would get advocates even if they are NOT unbefriended (ie they have got relatives being best interests consultees, already), in the new consolidated approach to advocacy?
  • I was not able to understand the difference between a regime for so-called supported decision making and the appointment at common law of someone of a person’s own choosing, to help them make decisions, or even make one for them – that is informal agency, and all you need for that to be viable and valid is the mental capacity to appreciate that the decision you are facing is a difficult one where you could do with some support or decision making in particular circumstances. Short of actual substituted decision making, it’s just another person’s opinion, and of some help. If it’s actual decision making for the person, it’s informal agency. If the decision is in the sphere where the person lacks capacity, there is best interests consultation of all interested others, already provided for, and the decision maker is the agency that is going to pay for the implementation of the decision. And we don’t need a new regime for any one of these three types of inputs. But as soon as someone loses capacity to appreciate that they have asked someone else to make decisions, they need to have made an LPA, (the welfare sort does not spring up, until the person lacks capacity for the issue in question) and that regime already exists, albeit that it is costly and complex. So what is the justification for supported decision making, and where is it supposed to FIT?
  • I would be really keen to understand what would become of guardianship, which is of course, already a regime for protective care, with rights of challenge to a tribunal?
  • My eyebrow shot up at the idea of the CQC inspectors regulating compliance with this new regime’s requirements, even if they did get ‘a lot more smart’ (Tim’s words, not mine!). I believe, (forgive me if I am wrong as a matter of the facts) that their staff don’t routinely come to safeguarding meetings, supposedly because of conflict of interest concerns regarding their regulatory role. So I am boggling at the thought of how they will regulate providers regarding deprivation of liberty. And their reticence in this regard is complicated by the underlying tension behind the Scope regulations and government policy for community based living. Is there any example of the CQC actually having prosecuted a provider of decent, albeit very secure and protective supported living, for not being registered as a care home, I wonder, since the Alternative Futures litigation, way back when? I would be amazed, if there had been – because of course it has been government policy since the mid 1980s and the early iterations of Valuing People (now superseded) that people lacking capacity are best cared for in the community – where they can get Housing Benefit and income support to pay for more of the necessary care, rather than in registered care homes, where the environment can actually be managed by a provider owing a 360 degree duty of care.

I think we need some truth in social care policy, before we spend more money on a replacement for the DoL safeguards…but I shall look at the consultation documentation with interest. We have 4 months to do it, ladies and gentlemen. Another holiday with a laptop in tow, appears to be on the horizon!

Why you should ask for a review of your assessed needs and your care plan, sooner rather than later!

Under the Care Act, there’s a specific section all about monitoring of care and support plans, and the rules that apply to changing them. It’s section 27, and it’s the first time that the concepts of review and revision and re-assessment have been put into the statutory framework.

You may be an existing service user in a council where the threshold of neediness, applied by the council before the new law came into effect, was tighter or stricter than it is now, under the regulations which contain the mandatory approach to the concept of a level of need that no person should be left in, nationally, without social care funding or services. The criteria, when taken with the stretched definition of eligibility, and the focus on the person leading the exploration of consequential significant impact on their wellbeing, and interpreted as required by the Government’s Guidance, make the chances of being found to have eligible needs, greater, in my view. So the sooner you get yourself reviewed, the better.

Any such council would inevitably prefer that you leave it as long as possible, before you push for a reconsideration of your needs and rights, under the new system.

The reverse is true, of course, if a council used to operate on a more generous basis than the new criteria: in that case, a person would (him or herself) want to put off their review for as long as possible! And given the focus on cuts, which may mean that there is pressure to accept a smaller package even if one’s needs haven’t changed, and even if the eligibility regulations make no real difference to assessment outcomes locally, people might feel that they’d be better off holding out against being reviewed, for as long as possible. It is impossible to advise on a strategy, but necessary to think it through, in my view.

How long is as long as possible, then? On the one hand, you can’t refuse to be reviewed. It’s not the same as assessment first time round: you’re in receipt of public money and you cannot refuse to be reviewed. Getting anything at all, turns upon satisfying the council that a whole set of facts exists, and if you withhold your co-operation, it will mean that you might lose your services on the footing that the council is no longer satisfied you need any….

On the other hand, in theory, you might well hold out until April 1st 2016. The expectation under the old law (no more than an expectation) was for review at least annually, and the new law came into force on 1st April 2015. Therefore, the expectation is that everyone should have a scheduled review before April 1st 2016, at which point the old law can be repealed in full.

What matters is that when you ARE reviewed, your know your rights under the Care Act.

But for now, the old law subsists, and that means that your current services are provided under the old law, unless and until you are reviewed. (I haven’t seen anyone writing about what that means for charging law – logically, if you are receiving services under the old law, you are receiving services which cannot be charged for under the Care Act, but would still be chargeable under the old charging legal framework. But it is too late at night to think about that right now!)

Under the new law, a person has a right to be reviewed, upon making a reasonable request. You don’t have to prove that your circumstances have changed. You don’t have to do anything more than explain why you want one.

If your circumstances HAVE changed as a matter of fact (your condition has worsened, or your dependency has increased because something in your environment or your relationships has changed) you will be entitled to re-assessment because you will be presenting the appearance of need, in any event. But if your circumstances haven’t changed and you are thinking that you are eligible already, in more respects relating to inability to achieve outcomes than you were before, there is no obvious right on the part of the council to refuse to review your situation just because it’s not yet supposed to be your ‘turn’. ‘Nothing ventured, nothing gained’, should be the motto here, I think.

Under the new law, the council can revise a care plan without doing a full re-assessment to identify all the needs all over again from square one; that is, it can come up with new ways of meeting needs that haven’t changed, without that automatically being unlawful just because there’s been no s9 re-assessment. But the situations in which that will be possible, in practice, are limited.

For instance, if there is an argument about whether new needs need to be counted in, because of a change in the domains covered by the criteria, or factual new needs due to a change, there’s no way a person could be lawfully refused a proper re-assessment. The last one done may have focused only on unmet need, and now the Care Act guidance says that all needs, even met needs, must be considered for recording as eligible, regardless of informal free care and help from one’s own family. That doesn’t mean that the State has to pay your relatives, or provide for what they are willing and able to keep on doing for your benefit, because there is no legal duty to provide for what a carer is willing and able to do themselves – but it does mean that the WHOLE picture, and not just the shortfall, has to be recorded, and measured against the eligibility criteria.

If the council thinks (see s27 of the Act) that “circumstances have changed in a way that affects a care and support plan” (or a support plan for a carer) then it must do a proportionate re-assessment, whatever one of those might be!

I think that this means that a council can actually change the way in which it offers to meet need, without going back all the way to assessing needs from square one. It bothers me, during this initial period (coinciding with further cuts) when many people will be having their care plans reviewed, that many will not know that the criteria have changed, or not know that they are now entitled to written reasons as to why they are or are not regarded as eligible.

To be explicit, my concern is that if a council is reviewing people and offering new ways of meeting unchanged needs, and people don’t know that the criteria have changed, and don’t push for a proper re-assessment, it could be ages before anyone actually applies the new approach in the regulations to them; and it might be some years before they get a proper Care Act compliant care plan, if no-one is thinking ANYTHING does need to be changed in the current plan.

What is happening out there, in practice, please? Please share the local practice, and raise the profile of the review and revision provisions in the Care Act.

CSI: what’s significant about that?

The regulations containing national minimum eligibility criteria are one of many major changes to social care provision in England. I was going to say ‘significant’ changes, but as this blog is about considering – in these very early days – how ‘consequential significant impact’ (CSI) is being understood in practice, I thought it would get just a little too confusing.

(Apologies to those who thought this post might be about a new, English social services version of the US drama series: although, to be honest, you really wouldn’t want a care system that focused exclusively on dead bodies, however much you might covet their investigative and forensic IT systems…)

The eligibility criteria, ‘test’, or threshold – all terms I’ve heard used to describe the new system – comprises three parts. The ‘significant’ element is the final part of the test (described here in shorthand only):

  • that (this is the 1st part) relevant needs (for an adult, or a carer) mean that …
  • there’s an inability in certain prescribed ‘outcome’ areas (the 2nd part), as a result of which …
  • there’s a significant impact (or likely to be) on area(s) of the person’s well-being as set out in section 1 of the Act (the 3rd part of the test).

The guidance says (paras. 6.110-6.111):

‘6.110. The term ‘significant’ is not defined by the regulations, and must therefore be understood to have its everyday meaning. Local authorities will have to consider whether the adult’s needs and their consequent inability to achieve the relevant outcomes will have an important, consequential effect on their daily lives, their independence and their wellbeing.

6.111. In making this judgement, local authorities should look to understand the adult’s needs in the context of what is important to him or her. Needs may affect different people differently, because what is important to the individual’s wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another.’

Why is this causing difficulties? There’s a whole range of reasons. One expressed to me by someone for whom English is not their first language – fluent though they undoubtedly are – was that they do not feel they understand well enough all the nuances of this word, and especially the number of ways it might be understood by native English speakers, to confidently apply it. Is the guidance inviting assessors to treat every person’s own view as determining the professional’s judgement, or merely encouraging assessors to accept that people experience inabilities differently. If the latter, does it mean that the tough and robust are less likely to be seen as eligible than those who are ultra sensitive to the impact?

A second reason may be if many people are still largely operating in the pre-April mind-set of FACS (Fair Access to Care Services). There, ‘critical’ and ‘substantial’ eligibility tests were concerned with situations or gaps being ‘severe’ or ‘vital’ or where the ‘majority’ of aspects of an area of the person’s life was affected, or of current situations not being sustainable unless the State did something, not least because those decisions largely stopped at what is now the second part of the eligibility test (the general ‘outcome’ areas, or domains). However, the current eligibility test now goes on to this third part about consequential significant impact on wellbeing, and it’s only after that final, third, part that eligibility is established. Ignoring this third part of the threshold and making eligibility decisions at the earlier, second stage simply means decisions aren’t compliant with the law. Too many people would be found eligible based on inability alone, or too few, where the cumulative effect of two or more areas of inability might add up to significant impact, but that’s been overlooked by ignoring the third part…

A third reason is linked in with section 2 of the Act, and the expectations around reducing, delaying or preventing needs for care and/or support:  that for some, is what underlines the eligibility decision is the significant impact on the person’s well-being of not taking the preventative route: in other words, whether the risk to the person’s independence is creating (or could create) a significant impact. This interpretation isn’t so surprising, given that paragraph 6.110 broadens out the notion of CSI to include effect on independence.

Getting to grips with what underpins how people are deciding what does – and does not – constitute ‘consequential significant impact’ is more than merely a pedant’s concern. Being able to explain, record, and if necessary defend why someone has decided there is or isn’t a significant impact is central to the whole eligibility process. One way I’ve been explaining this recently is to ask practitioners to think of the decision as an incomplete sentence, which they need to be able to finish: “There is/is not a significant impact in this situation because ….”

Of course, taking that approach also applies to current and potential clients and carers who may also want to explain why an impact is significant for at least one of those crucial areas of their well-being, not least if they are seeking to persuade their council to make a different decision. Adults and carers might look at what they’ve said in their assessment really matters to them, and then make the case for how this important matter links with their assessed needs, with their agreed inabilities in outcomes, and on to the areas of well-being that are affected.

So – aside from suggesting people look up the meaning of significant in a dictionary – what help is there at present? The adult’s (or carer’s) inability to achieve the minimum required number of outcomes impacts on at least one of the statutory aspects of well-being in a significant way, the guidance says (para. 6.109); or, there might be an impact on a number of the areas of well-being and this cumulative effect is what creates ‘significance’ because this is affecting the adult’s overall well-being.

SCIE – the Social Care Institute for Excellence – talks about a number of aspects including that, even if needs which create inability in various outcome areas are perceived to be ‘moderate/low’, the accumulative effect of those needs creates significant impact. This seems to be looking at the pre-April FACS way of understanding needs (‘critical/substantial/moderate/low’) and then applying it to the post-April three-part eligibility threshold. It may be useful for those struggling to make this transition from pre- to post-April approaches, providing everyone is clear that the level of the person’s needs may in fact have nothing to do with significant impact on well-being.

This is one of the many areas of the Act where – for all involved – understanding and interpretation will develop and change over time. In the meantime, here’s an example for you to consider.

A woman with a muscular-neurological condition no longer has good grip in either of her hands, or much strength in her hands and arms. She can’t turn her ordinary taps fully on and off. She can’t change the controls on the central heating boiler, or refill the boiler’s water level when that’s needed. She’s finding it hard to turn off the gas controls on the cooker, and take things on/off the stove or in/out of the oven, and to chop up vegetables. She can’t always easily turn her front door key, or grasp door handles. She can’t change lightbulbs. But she can write, and type, and dust her home, and wash, and dress, and do her hair, and handle coins, and push her train ticket through the barrier and collect it on her journey to work. Does the level of her needs matter? No: what matters is that, because of needs relating to an impairment or illness (1st part of the eligibility test), she can’t do at least two of the ten areas listed as outcomes for adults – Being able to make use of the home safely, and Managing and maintaining nutrition (2nd part) – and it’s having (or not having) a significant impact on her life (3rd part) because ….

How would you finish that sentence? Really interested to hear your thoughts!

Timing

The art of good … –

      – Timing.

– …comedy is ….

(An old joke – or, rather, an upcycled joke: one which may or may not work in this medium!)

So what’s this about? The timing of different aspects of the Care Act functions that have to be delivered by councils….

I’m already being asked, mostly by family carers at the moment, if there are any targets or time limits within which local authorities have to be complete certain things – the stages of that customer journey, for instance.

They mean the stages that are currently essential in their lives, or in the lives of the person they care for, such as:

• assessments for care/ support
• eligibility decisions
• actual provision of care, or support – including preventative support.

Carers want to know what arguments they can use to get authorities moving faster. To those people, in the most part, I rather sadly shake my head and bemoan the loss over the last several years of helpful targets: the ones that people used to use to support their situation, such as the maximum time between first making contact and the assessment being completed; or how quickly post-assessment decisions had to be made and shared. All long gone.

What we currently have in the Care Act are very few actual time limits. For those who have got all the way through the eligibility process to find unmet eligible needs for which their council is taking responsibility, there are time limits relating to reviewing the care plan (initially at 6 weeks, and then at least every 12 months – at least an expectation that the gaps will be no longer than that), and time limits for reviewing agreed direct payments. There are still – in section 74 and Schedule 2 to the Act – time limits relating to hospital discharge of NHS patients for whom (the NHS believes) leaving hospital is not likely to be safe without some care and support post-discharge.

There is even a rather extraordinary time limit on the face of the Act itself, in section 29, for local authorities to retain care accounts (relating to the care cap, yet to come into force at the time of writing this particular post) until either it becomes aware of the person’s death, or for 99 years starting with the day on which it last updated the account.

But these are all time limits on the State, once it has taken responsibility to do something. For those trying to get the State to do something that might ultimately mean the adult or carer might be on the receiving end of that responsibility – to finish an assessment, for example – may have to rely on the Guidance saying that the process being carried out should be done in a timely manner.

However, the guidance particularly around assessment could and should still be helpful to adults and carers. At present, in some areas at least there are reports of two factors historically contributing to delaying the completion of assessments, or of making decisions about eligibility:

• ‘Pausing’ the assessment for preventative support, where in fact the person is being placed on an apparently indefinite  waiting list for a preventive service (including community aids and adaptations);
• Insisting that a medical diagnosis is necessary in all cases to proceed with eligibility decisions.

The guidance says: (with bold font added for emphasis)

‘6.29 An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.’

Clearly, this could aid adults and carers particularly if their council hasn’t told them a likely timescale, and isn’t keeping them informed: leaving people indefinitely mid-system is no more a valid option than not keeping them up to date.

Other parts of the guidance may also help in situations where adults and carers are facing delays, such as being told there has to be a medical diagnosis (bold added for emphasis):

‘6.105. The first condition that local authorities must be satisfied about is that the adult’s needs for care and support are due to a physical or mental impairment or illness and that they are not caused by other circumstantial factors. Local authorities must consider at this stage if the adult has a condition as a result of either physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury. The authority should base their judgment on the assessment of the adult and a formal diagnosis of the condition should not be required.’

Unless the authority can give a good reason why a formal diagnosis is needed for a specific individual, for the thinking required by the Act, the decision-making process should not be delayed – and, if they did delay without a good reason, there would be strong grounds for a complaint or more. Applying a blanket policy (that everyone must have a formal diagnosis) would likely be open to a much stronger challenge.

Deciding to pause an assessment to allow for preventive support to be put in place is encouraged, providing of course this is deemed to be

a) helpful and suited to that particular person and – critically –

b) the support is actually put into place. Interrupting an assessment simply to put someone onto a known waiting list for one of these services, and calling it a ‘pause’ in the assessment is unlikely to cut the legal mustard (emphasis added):

‘6.25 Local authorities should not, however, remove people from the process too early. Early or targeted interventions such as universal services, a period of reablement and providing equipment or minor household adaptions can delay an adult’s needs from progressing. The first contact with the authority, which triggers the requirement to assess, may lead to a pause in the assessment process to allow such interventions to take place and for any benefit to the adult to be determined.…….’

The government suggested that the Care Act would save money by clarifying legal issues, and thus saving time and costs on litigation. But one of the issues that arises as State systems become more complex, and particularly when resources become more stretched (everyone’s resources, that is – not only local councils, but the resources of individuals and their community and personal networks) is that adults and carers may need to – and increasingly will – themselves become Legally Literate.

Valley of the DoLS…. whither next?

Judicial politeness is wearing VERY thin, over Deprivation of Liberty, the suggestion by ADASS that there would be 30,000 extra cases, and the latest round of scenarios being brought to Court of Protection, such as the Rochdale, Tower Hamlets, Bournemouth and W City Council cases, as well as the fall-out from Re X.

Munby LJ’s case management approach, in Re X, whereby he secured the opportunity to get 25 varying situations to court, so he could make up some principled procedural rules for streamlining, and on which the new Rules of Court have been based, has been held to be something he had no power to do – by a Court of Appeal saying so, albeit that it admitted that it no power either even to hear an appeal from his judgment!

Mostyn J and Bodey J are fighting a rearguard action to differentiate between supported living/own home/benign relatives-driven restriction of liberty or deprivation (in the latter case on the footing that it is not imputable to the State, if ‘diluted’ by the input of benign relatives’). However, the Court of Appeal went along with the allowing of an appeal against Mostyn J’s Rochdale decision (without saying why, much to Mostyn’s tangible chagrin) presumably on the footing that a person’s physical inability to leave CANNOT CONCEIVABLY gainsay the finding of factual deprivation of liberty, if they are also incapable of asking to leave: one would still need to consider what would happen if someone else turned up to take them away, in order to determine whether they are actually NOT FREE to leave, and hence ‘deprived’ and in need of that situation being authorised.

In the children’s field, in D, a 15 year old was held to be lawfully deprived of his liberty because his parents had consented, even though the MCA applies post 16 for the last two years of a child’s minority. In the vast majority of cases, under 18 year olds in special schools and care homes will be living where they’ve been placed with parental involvement and acquiescence through the application of full or shared parental responsibility, so the approach in D’s case shows the way forwards if we do not want to extend DoLS to Ofsted settings. Seeking explicit parental consent to behavioural support plans, is my recommendation, there!

Fascinating though it is to people like me, one can easily see that this simply cannot go on – it will either fatally damage councils’ finances, the practical day to day running of the judicial system and the Official Solicitor’s viability existence, or (if we fudge it) the rule of law.

I think that we must all remind ourselves that it is not deprivation of liberty that is bad, or wrong, morally, legally or ethically: it is sometimes a Care Act need which must be funded, and often a person’s human right, precisely because of their incapacity. WHAT IS WRONG WITH IT, IS THAT IT MUST NOT BE ARBITRARY; AND IT MUST BE OPEN TO THE PERSON TO CHALLENGE THE SITUATION USING THE JUDICIAL SYSTEM. AND OF COURSE, people without mental capacity need extra help to USE the judicial system in the first place… and may just be invisible, if they have no relatives to raise their eyebrows at the care package.

A look back at the good old days…

Since the Bournewood case, in the late 1990s, we have had at least 5 years of consultation, 2 pieces of legislation, 2 tranches of guidance, about 100 cases, taking the law up some predictable twists and turns, and an industry of training, for BIAs, IMCAs and RPRs. And yet BEFORE the Bournewood case, when declaratory relief was all that there was, the same two types of cases, essentially, came to court:

a) Cases where the person confined did not accept that they actually lack capacity, in relation to the regime in which they are being managed and that they were therefore being detained without legal excuse. Such people needed to challenge the legitimacy of that detention – and therefore needed legal aid and HELP to do so – only those with litigation friends made it to court…

b) Cases where a third party was either trying to get to see the person, inside, or to improve the conditions under which the care was being delivered – in which case the person needed to bring judicial review proceedings about the appropriateness of the package – or was trying to break the person out of the setting in which they were confined – in which case they needed to make an application for asserting that the alternative they could themselves offer, was what was really in the best interests of the person concerned, or that the care package had been concluded without proper best interests decision making.

A variation on this second theme was where the State needed an injunction to make interference with the person into a contempt of court, and thus keep the package stable.

This analysis still holds good today, and explains the difference between the ADASS guestimate as to the floodgates if one followed the Cheshire West case, and the real number of cases that have been conmenced, which the Court of Protection is coping with at the moment. Where a person is being well cared for, with the wholehearted support of relatives with capacity to challenge the plan, it will be legally dubious in only a tiny percentage of cases, by virtue of the relatives’ real motives not being properly scrutinised, or the person’s capacity not being properly assessed.  

I am not knocking the emphasis in the case law on non-arbitrariness and access to judicial scrutiny under article 5.4 of the Convention is importance, but I am saying that one does not need “double” care planning (the essence of DoL Safeguards) to achieve this. What one needs is a clear system for State intervention (which the MCA and new Care Act create, in my view); actual compliance with the Care Act, by councils and the social work sector; a properly funded Official Solicitor system and rules of court allowing party status in the cases that DO have to be brought, and a properly funded IMCA system with power to challenge statutory or privately arranged care plans where an independent person thinks something is not quite right…

What happens abroad?

It isn’t happening in other European countries, as far as I can tell. They don’t even have DoLS-type regimes for administrative scrutiny in other Convention countries, let alone judicial scrutiny.

I wonder why this is? Is it that in all other Convention countries, people are simply not NEEDING to be confined by dint of uninsightful challenging behaviour, or dementia? Are they all electronically chipped or under CCTV? Is it that nobody is really bothered in those other countries whether it is a breach of human rights, if it is happening without access to legal scrutiny, and we are just much more civilised? Or is it that our care sector workforce and care homes and hospitals are regarded as of a much lower quality in terms of humanity or stimulation, than is the case, abroad? Or is it that those needing it, elsewhere, are all looked after by their relatives, with no real State intervention, and the real problem is that the majority of people who might otherwise be carers, here, don’t wish, or can’t afford, to give up work, here, in order to do it at home? Where is the research on what happens in other countries signed up to the European Convention, I am wondering? Any academics out there with the answer to that question, please?

The next steps

When the new DOLS proposals come out on 7th July, they will have to take the Care Act into account.

That Act and the guidance stresses the pervasiveness of the Mental Capacity Act at the assessment and care planning stages; it suggests that regimes for restraint and confinement be explicitly planned for and commissioned, and it makes safeguarding turn on a concern about abuse or neglect, to which well-planned and properly resourced benign care cannot ever give rise.

So it seems to me that if councils knew what they were care planning for, in light of a proper finding about capacity, we would know who was deprived of their liberty according to the acid test, and not rely on care homes and hospitals to tell us. We could return to a position whereby incapacitated people who need caring for continuously in order to be safe could be presumed to be legally detained, as of unsound mind, so long as the means to challenge that position for people lacking capacity included funded advocates who could get litigation friends or the new style representatives sorted out, to probe and take the initiative to assert that the regime should not be happening, in any given case.