Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Graham Hennis (MCAB34)

I am Graham Hennis , I am a qualified Social Worker and a Best Interests Assessor. I have completed approximately 2500 Deprivation of Liberty Safeguards Assessments since 2009 . During this time, I have observed the changes to the DOLS and the impact of Cheshire West in 2014 , and would like to put my views on the DOLS forwards as part of this consultation as a professional Independent Social Worker.

I agree that there is a need to review some aspects of the DOLS however, I do not agree with the wholesale change of the DOLS to the LPS scheme for the following reasons; during the course of my working day I can visit care homes and hospitals and find out that even now some 10 years since the inception of the DOLS that staff still do not know how , when and why a DOLS should be applied for. There is a misunderstanding about what the scheme covers and what restrictions can or can't be in place, some staff believe that the DOLS would only need to be put into place if a person was suffering from an infection and do not realise that the DOLS is there to safeguard the person's article 5 and article 8 rights.

Other p rofessionals such as Social Workers, Nurses and Care M anagers do not always understand what the DOLS is about; as part of the assessment process I consult with family members and other interested parties and noted that people are beginning to be aware of the existence of the DOLS. My conclusion is that to change a relatively new piece of legislation (considering that the National Assistance 1948 was recently in use) in a short space of time such as has been proposed is an unnecessary move , which will add to the confusion around the whole process of people needing to be assessed with regards to their article 5 and article 8 rights; and instead of saving costs which appears to be a motive for the change will increase costs.

If the scheme goes ahead as proposed and social workers are expected to carry out the first tranche of assessments the n more social workers will need to be employed as presently the professionals that I consult with advise me that they are oversubscribed and are carrying excessive caseloads and are only able to respond to emergencies and are unable to carry out planned work.

Comments on the scheme

Wishes and beliefs of the person

The ethos of the DOLS was to put the person at the centre of the assessment and it was necessary to consult as much as possible with the relevant person to obtain their views on the situation and to determine their understanding of being deprived of their liberty. If the person is not consulted or their views obtained directly from them then how can the assessment be valid and represent their situation?

Approved Mental Capacity Professional (AMCP)

The idea that only people identified as objecting to the intervention will qualify for an assessment by an AMCP also runs contrary to supporting people to exercise their article 5 and article 8 rights. In my experience when assessing people under the DOLS it is clear that care home staff lack the knowledge and skills necessary to obtain a person's viewpoint and present an objective view of the situation. Some residents in care homes and hospitals may not have family to advocate for them, there may be delays in arranging advocacy support and it may be that the only professional person that they would see would be the BIA.

Annual reviews of care plans are not always completed on time by the relevant professionals, in addition care home staff's main priority is to attend to the physical care needs of their residents and the nurse’s responsibility is to attend the medical needs of the patients. Many care staff do not have the breadth of training or knowledge of legislation that a professional such as a Social Worker would have.

Care home staff may not be aware or understand the triggers to requesting an assessment and may not have knowledge of specific conditions that can affect a person's capacity and understanding of their situation; residents in a care home and their families may be unwilling to express dissatisfaction to the care home staff for fear of reprisals.

Because of the above it is my opinion that all people in this type of situation require to be seen by the AMCP regardless of whether they are objecting or not, this would provide protection of their article 5 and article 8 rights.

Advocacy

All vulnerable people should have access to independent advocates to ensure that their views are represented. There are many people in 24-hour care settings who do not have family or others that could represent them with regards to their being deprived of their liberty or who have difficulty in expressing their needs or may be coerced into agreeing to a placement when it does not meet their needs.

Advocacy should be a right for people in this situation.

Care Home Managers

I have spoken to care home managers who have advised that they were not aware that they would be expected to arrange assessments for people in their care; they expressed concerns around who would complete the work, who will arrange the assessments as they would not have the necessary skills and knowledge required to complete such assessments. They expressed concern about who would pay for these assessments to be completed and whether if it became a duty for them would the government provide them with the additional funding required?

The managers advise that their main concern is to ensure that their business continues to function and they would prioritise ensuring that there were no vacancies and that revenue is being collected; the managers cannot understand where or how they would fit into the assessment process and raise concerns that there would be a significant conflict-of-interest and that this could lead to unintentional infringements of a person's article 5 and article 8 rights with the care home potentially suffering legal action through being unable to carry out or arrange such assessments.

Renewals

The proposed three years duration of the LPS is far too long for a case to go without an independent review of the situation. Changes can happen to people such as the introduction of sedative medication, increased restrictions and changes in a person's physical health that may affect the overall LPS. The current maximum duration of 12 months would be more appropriate, especially in cases where people do not have family or advocates that could raise concerns about the person situation and trigger timely reviews.

Private hospitals

Given the scandal surrounding Winterbourne View it is difficult to see the government's point of view as to allowing a private hospital to become its own responsible body. Professionals I have spoken to feel that this would be a major conflict-of-interest and that illegal and unethical practices would be allowed to continue in such situations as the re would-be a potential for the private hospital to not want independent scrutiny of their practices.

Conditions

It is necessary for conditions to continue to be a legal requirement of any scheme that deprive s the person of their liberty. The conditions can be used to improve the providers practices, they can guide the provider in ways of reducing frustration for the person is deprived of their liberty; the conditions can be a means of setting timescales for work to be completed and for engaging other professionals that may be able to add value to the person situation.

Professional Assessments

The point of a professional assessment is that this would be done by somebody that that has training and experience of the field that they were working in. Effectively what this is saying is that anybody can complete an assessment and the assessor may not have knowledge or experience of health conditions, the impact of prescribed medication, the legislation surrounding the reasons for the assessment and may potentially be working for the responsible body (care home or hospital) and the outcome of their assessments may be influenced by their management structure.

The point of using a BIA or AMCP would be to provide an independent professional assessment of the person ’s situation and the potential impact of imposing restrictions on the person that is being deprived of their liberty.

This suggestion is at odds with the requirements of the Court of Protection which requires a qualified professional to carry out the capacity assessment with regards to welfare decisions and appointing deputies to act in a person's behalf; this is a bizarre conundrum considering that the LPS is aimed at depriving people of their liberty which is a fundamental human right.

Funding

The G overnment suggest that the new scheme would save money however, based on the experience of the DOLS and the impact of Cheshire West and the gradual increase of Section 21a challenges and the potential for the LPS to cover under 18's and community care cases is my opinion that costs will increase with this new scheme.

If as proposed social workers carry out the initial assessments then more social workers would need to be employed by local authorities to carry out the day-to-day jobs to free time for the LPS assessments to be completed, following the AJ case there has been an increase in the use of paid RPR support people with DOLS and as it is likely that the use of advocacy services would increase based on the lack of professional support given to people deprived of their liberty by the LPS scheme with a resultant increase in challenges to be will be confined in care homes and hospitals deprived of their liberty.

Also, when completing assessments there is not always a clear indication of the person's diagnosis of a cognitive impairment or dementia for example in the care records, the diagnosis may need to be made by the mental health assessor when they assess based on the provided information and observations of the person. According to the LPS the confirmation of diagnosis needs to be in place before the assessment can progress and this would surely cost the responsible body to arrange for this assessment to be completed.

Inadequate consultation and speed of bill

As this is a piece of legislation which would have a significant impact on a person's article 5 and article 8 rights ; there should been a significant consultation process which should have involved the people responsible for carrying out the assessments, the whole process appears to be very rushed compared to the introduction of the Mental Capacity Act and the Deprivation of Liberty Safeguards.

From the reports it appears that some Lords and MPs recognised that the scheme was being pushed through the legislative process and that key elements were not being given due diligence as to how they apply to people and the impact on people likely to be deprived of their liberty.

Graham Hennis

Independent Social Worker

January 2019

 

Prepared 15th January 2019