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A depressing state of affairs
Yet another judgement in the Court of Protection has criticised the way local authorities have used (and sometimes not used) the Deprivation of Liberty safeguards and the Mental Capacity Act and this time the judge pulled no punches. I’ve been reading a case concerning Essex County Council in the Court of Protection from earlier this year to try and identify lessons that health and social care staff can learn.
Taken away from home
The story very briefly is of a 91 year old man with dementia, and poor physical health. To keep anonymity, the court judgement refers to the man as ‘P’. Social workers from Essex County Council had safeguarding concerns about financial abuse and removed him from the house he had lived in for 50 years and took him to a locked dementia care unit. He was very unhappy at the care home and was unable to enjoy the things he had enjoyed whilst at home such as going to church and looking after his cat. Fortunately he had some very good friends who were able to appeal to the Court of Protection to try to get him home. The judge in this case was very scathing about how the county council rode roughshod over the man’s rights saying ‘It is hard to imagine a more depressing and inexcusable state of affairs.’
Following the principles
If Essex County Council staff had genuinely acted in P’s best interests he would have got home a whole lot sooner, and maybe would have not been locked in a care home at all. The judge’s criticism of their failings point the way to how health and care staff should work with people whose capacity to decide where they should live is in doubt.
- Staff should follow the principles of the Mental Capacity Act. Notably they should assume people have capacity unless there is evidence otherwise. They should undertake assessments of capacity on a regular basis. The other principle that was important in this case was trying to find the least restrictive option – this could have meant allowing ‘P’ to go home with a package of support that could have kept him safe.
- They should listen to and respect people’s wishes and views. P was consistently saying he wanted to go home. Staff should have worked to see if this was possible.
- If care home residents have no friends or family to speak for them, or there are disputes between friends and family members, an independent mental capacity advocate should be appointed.