Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Christiane Plaum, MCA DoLS Team Manager, Deprivation of Liberty Safeguards Team, West Sussex County Council (MCAB56)

My name is Christiane Plaum and I am a social worker, Best Interest Assessor (BIA) and Mental Capacity and DoLS Manager. I trained as a BIA in 2008 and then started leading DoLS teams in June 2014, when the chaos resulting from the Supreme Court Judgment took effect. I am currently MCA DoLS Manager in West Sussex County Council (WSCC), but the response below is my personal opinion and based on my experience in two councils; it does not reflect the view of WSCC and the information I provide about WSCC is in the public domain.

I like my work because managing ‘the impossible’ incentivises the use of structure and prioritisation. As a DoLS manager, I am interested in the bigger picture and in benefits of DoLS and LPS for a wider group of customers.

Edge Training & Consultancy tend to point out cases where using DoLS has led to significant improvements in a person’s life. I find that in the two councils I worked for, only up to 10% of the assessments that I quality assured or authorised at any given time lived up to this promise; and that this percentage would go down to 1% if the Mental Capacity Act 2005 was always used correctly by the professionals involved in the cases.

There is not enough time to comment on all elements of the Bill, but I would like to comment on a few points in the following.

1. Appeals to the Court of Protection

WSCC receive about 4400 requests each year under Schedule A1 of the Mental Capacity Act 2005 from care homes and hospitals. Not even 1% of these are completed in advance and my team prioritise cases for completion where people resist or seem to resist their care or an element of their care. For these people, DoLS contributes to legal protection in that it enables a person to challenge their deprivation of liberty in the Court of Protection (CoP).

Only about 40 cases in WSCC went to the CoP since 2016 and in most of these cases the appeal is initiated by a professional advocate. Of those cases that do go to court, the scrutiny in the CoP is thorough and thoughtful but not quick. In even fewer cases, the court process leads to a significant change in the person’s situation; and the process can be very upsetting for family members and labour and extremely costly for Local Authorities.

I do not see how this is resolved in the bill as appeals would still go to the CoP.

Two examples to illustrate this further:

A

A is a young man who challenged his DoLS authorisation in a residential home last year with the support of his advocate. He has a learning disability and having this opportunity made him feel in control. He understands that he cannot go home to live with his parents and he does not wish to do so. He also does not wish to move to another care home, but he has grievances about some of the restrictions that are placed on him and questions them regularly. The court case last year led to a lot of focus on his care and him feeling in control and ‘empowered’; it also unsettled him and affected the relationship with his carers. Carers maximised his choices to the extent that he now felt in control of the carers and he had a certain awareness of this being triggered by the 21A challenge of his DoLS authorisation.

A has now asked to challenge his DoLS again (this is possible after a year) as he struggles to remember his mixed feelings when the case was last in court. The paid representative is trying to explain to him that the court process gives him the chance ‘to be heard’ but not ‘to have all his wishes fulfilled’. It is difficult to explain this to A because of his difficulty with processing information and remembering it.

B

B sat at her father’s deathbed when an email from a solicitor arrived regarding her father’s 21A DoLS challenge. The decision for him go to a care home had been a joint one between family and council, based on the risk that he posed to himself when living at home on his own. There was now no longer a home to go back to, but solicitors had already asked her many questions about the sale of the house and she had described the condition the house was in.

When an advocate asked if her father wanted to challenge his DoLS, he said yes immediately. B said to us before that she was not surprised, as her father had always liked any opportunity for litigation. What she had not foreseen was the arduousness of the process. At the beginning, she found the mere idea of court involvement frightening. She felt blamed by how the questions were asked. She loved her father and did not want what turned out to be his last months to be ‘tainted’ by court proceedings.

A round table meeting had been planned in the court and for this meeting, a picture of her father’s home and its layout was requested from her by one of the solicitors on the night he was dying (the solicitor was not aware that her father had become so unwell.) She thought that the court process was a waste of taxpayer’s money and the money would be much better spent on improving the care in care homes. She thought care in care in nursing homes was very expensive but still not good and she wondered why the money was not rather spent on improving these conditions.

2. Care home staffs’ responsibility for LPS

Care homes and hospitals (Managing Authorities) currently complete either a Form 1 (request for authorisation) or a form 2 (request for further authorisation which is shorter) and send this to the council where the person is ordinarily resident.

Many care homes and hospitals struggle with these requests and 90% of the requests I have read are incomplete or contain wrong information. In the part where the person’s care is described, I often see paragraphs copied and pasted from another person’s request.

I experience a distinct lack of knowledge about the Mental Capacity Act 2005 which makes it much harder for staff in care homes and hospitals to understand the DoLS process. Therefore, I welcome that the Bill will give more responsibility to care homes because despite all my efforts I have made only little headway in helping care homes and hospitals understand the responsibilities that each single carer has when it comes to DoLS and best interests decision making under the Mental Capacity Act in general.

The new system would however need to take these training needs for care staff into account. I am worried in this context about funds being made available and then training not actually achieving the necessary results.  I usually recommend that care homes appoint an ‘MCA champion’ who speaks to their colleagues and, on a daily basis, works on a positive culture of care (as opposed to carers learning to complete a form.)

DoLS, the original LPS proposal, and the Bill are complex and for the average person ‘alien concepts’. The message of the Mental Capacity Act is comparatively easy (and often still not understood and used). Complex concepts and bureaucracy distract people from the ultimate goal of fostering a culture of self-determination, choice, and respect for a person’s wishes and beliefs.

Legal protection often offers well educated people (or those with the help of a professional) the opportunity to change their circumstances; changing the culture in care homes and hospitals would offer the same to the average customer.

LPS in the Bill requires the care home to complete assessments, but hopefully, these will not necessarily be lengthy documents. The current age assessment in DoLS consists of nothing other than recording the person’s date of birth or estimating their age. The LPS equivalent for an eligibility assessment (asking if the Mental Health Act 1883 should be used) could and should be very short. But the most important element is still that the person providing the care has a very basic knowledge of when the Mental Health Act should be used and can recognise when matters are more complex and need to be discussed with a responsible body.

3. Responsible bodies

Could it be made clear what the responsibilities are of other Responsible Bodies than the Local Authority. I see a huge benefit in the NHS as commissioners of care taking on responsibility for cases, but I would like it to be clearer that they have to train the required amount of AMCP’s and take responsibility for the cases where the person is objecting. If the provision of AMCP’s is left to the Local Authority, I see a good chance that the ultimate responsibility stays with the Local Authority.

4. Reviews

It is not clear to me what will replace the Part 8 review of a DoLS; I would wish that this was only triggered where one of the requirements for the DoLS is no longer met.

5. Renewals

If care homes in all cases considered Mental Capacity and DoLS and the above mentioned culture changed, we should be able to authorise DoLS for at least 3 years from the first authorisation. The majority of our customers have a long-term impairment of the mind or brain which is not likely to improve. Most common impairments are learning disability and a form of dementia.

6. Advocacy

I am glad that the Bill considers options such as an appropriate person. I understand the criticism that protection is lower than in the current system, but I am also aware that the current waiting time for a paid person to take on the role of ‘Relevant Person’s Representative’ (for the duration of the DoLS) can be up to 6 months. Such an advocate costs around 40k in a year, £570 per person per year, services spot purchased per hour cost up to £35.

I am a big supporter of advocacy, I see it as the biggest benefit of the DoLS process, next to the right to appeal, but advocacy is expensive and making it a requirement per se and not limiting it to complex and selected cases needs to be considered in resources provided to Local Authorities.

An example

C

C said to his advocate how his life had improved drastically after the visit from an advocate because he had no friends or family visiting him and now has ‘somebody to talk to’. It did not matter so much to C what they talked about, it was the fact that somebody visited him and talked to him that mattered.

7. LPS and the increased scope

West Sussex are currently not completing all authorisation requests which are sent under Schedule A1. As a result, some people do currently not have the benefit of this legal protection.

For the streamlined process, which is used for deprivation of liberty in domestic settings, we currently focus on the most concerning cases.

LPS is going to increase the scope of assessments to include all DoLS in domestic settings; we are concerned about the additional funding that this increase of scope would require. Increasing the scope without providing additional funding would likely lead to more people not being sufficiently protected; and it would not solve the problems that we currently have with DoLS under Schedule A1. (However, I did not see the original proposal for LPS providing a cheaper solution either.)

The process that is used for deprivation of liberty in domestic settings is called ‘streamlined’, but it currently takes longer than the process for DoLS in care homes and hospitals. In my experience, these assessments can be especially stressful for family members as they are complex and, contrary to DoLS in Schedule A1, the person is seen in their own home.

If Telecare is included, I estimate that Local Authorities will have at least the same amount of requests coming their way for deprivation of liberty in domestic settings as they currently receive under Schedule A1. The requests that are currently considered in court cannot be used to predict correct numbers, as most councils are struggling to fulfil their requirements under the streamlined process.

I think we should try not to over-legalise people’s private lives by including deprivation of liberty in domestic settings in the Bill.

8. Forms

WSCC are currently allocating about 10 hours for the completion of Form 3 (Best Interest Assessment, No Refusals Assessment, Age Assessment), as we aim to meet certain quality requirements. This is after the forms were streamlined and improved by ADASS.

Care homes often see the DoLS forms as a bureaucratic necessity which has nothing to do with their daily work. I have tried for the last five years to explain that it is the actual work that matters and that all staff in the care home need to consider the spirit of the Mental Capacity Act 2005 when they work with people. It is the every day situation of ‘not being heard’ that makes people miserable and this situation is rarely changed by a visit from a BIA.

It is in the care home that staff need to understand that even if you are 80, or have a disability, you still have i.e. the right not to be patronised, you have a right for your advance decisions to be respected, a right to be given some time to think about decisions before somebody makes them for you.

Training organisations and independent BIA’s and DoLS leads like me can have a commercial/material interest in DoLS staying complicated and being seen as more influential than it might be. Equally, care providers have an interest in not changing the way they are providing care. They might be afraid of DoLS because they only see the bureaucratic process and learning has focused on only completing a form instead of understanding how the Mental Capacity Act  protects people and why.

9. The Mental Health Assessment

Why is a long-standing diagnosis of a metal disorder not just confirmed instead of diagnosed or assessed (which, with i.e. GP’s, triggers a cost).

January 2019

 

Prepared 16th January 2019