Mental capacity and the battle of best interests

Social workers can come into conflict with families when deciding whether a person should be deprived of their liberty. So whose view should prevail? Vern Pitt reports

The deprivation of liberty safeguards (DoLS) are designed to prevent people who lack mental capacity being detained in care homes or hospitals against their best interests. Introduced in April 2009 under the Mental Capacity Act 2005, they were inspired by the case of HL, an autistic man admitted to Bournewood Hospital, Surrey, in 1997 without any formal authorisation or any recourse for him or his carers to challenge his detention.

However, his carers, Mr and Mrs E, who have become campaigners on the issue, say the safeguards are not working, and that professionals are still shutting families out of the process and denying vulnerable people their rights.

For service users, it is councils that determine whether a current or potential deprivation of liberty is justifiable, on the application of care homes or other providers.

This task often falls to social workers as best interests assessors. They will determine whether a less restrictive form of care is possible and whether a deprivation of liberty is necessary to prevent harm.

Here, professionals can find themselves pitted against families with differing opinions, including on the question of whether a person should be cared for at home or in a care home.

So who is best qualified to decide on a person’s best interests?

A recent Mental Health Alliance report identified a “very limited knowledge-base” among best interests assessors.

“The initial training for assessors was very short and no-one really knew what was going to happen with the legislation,” says Kat Simpson*, a social worker and best interests assessor. “The difficulty with being in the first wave of trainees, as I was, is that there were no real case examples. The forms were not finalised and the reality of assessing did not seem to be concrete enough.”

Some councils use approved mental health practitioners (AMHPs), who are trained and authorised to section people under the Mental Health Act, as best interests assessors. “Those people who have an in-depth knowledge of the application of the law tend to be more able to deal with the intricacies of the interface between the Mental Health Act, the Mental Capacity Act and other legislation,” says Greg Slay, the Association of Directors of Adult Social Services’ spokesperson on DoLS.

AMHPs do tend to avoid common errors, says Roger Hargreaves, author of the Mental Health Alliance report and former mental health lead at the British Association of Social Workers. Errors committed by some assessors include the assumption that people cannot be deprived of their liberty if their best interests have been served, when their role is to determine whether such action is in the service user’s best interests.

“It’s partly because people’s mindset is that they don’t see themselves as depriving someone of their liberty because they see that as a bad thing,” Hargreaves says.

However, he points out that most AMHPs come from a background in mental health for younger adults, while most of the clients subject to DoLS are people with learning disabilities or dementia.

This poses questions over whether the statutory duty for best interests assessors to be “suitable for the case” they are considering is being fulfilled, a concern raised in Hargreaves’ report for the alliance.

His study also found that family members who disagreed with professionals were often excluded from the process.

All people subject to DoLS should have a relevant person’s representative appointed to speak up for their interests, usually a ­family member or friend. Councils are legally required to review a DoLS authorisation if this is requested by a representative, while representatives can also take cases to the Court of Protection, the final arbiter on DoLS.

However, representatives are usually appointed by councils, on the advice of best interests assessors, and Hargreaves’ report warned that authorities were sometimes declining to appoint relatives who opposed the authorisation.

If family members are not appointed to this role, it severely limits their ability to challenge the best interests assessors’ decisions because they have no right to legal aid to challenge care plans in the Court of Protection.

Simpson says family members, as opposed to paid advocates, should always be appointed as representatives “unless there is a good reason that it may be to the detriment of the service user, for example, if there is a history of proven abuse”.

Mr and Mrs E say a culture change at the heart of social care is needed to put individuals and their families at the centre of the process and stop professionals being risk-averse.

Families they have spoken to have said that some best interests assessors overstate how much care a person would need at home, as opposed to in residential care, to maintain a deprivation of liberty because of risk aversion.

“Families know the individual well and know their past and present wishes,” says Mr E. “All they might need is a bit of additional help to care for them but councils don’t see it like that.”

Most of the practitioners Community Care spoke to felt social workers were best placed to make a final best interests decision. But professionals would do well to pay heed to an emerging body of case law, says Hargreaves: “Courts tend to take the view that relatives, particularly close relatives, are in a better position to judge what is in the person’s best interests.”

* Not her real name

 More on DoLS

CASE STUDY

Son felt sidelined from decisions over father’s care

Since early 2009, Harold Smith*, who is in his seventies and has dementia, has been living in residential care. For much of that time, he has been subject to the deprivation of liberty safeguards.

After a stay in hospital, it was decided that he lacked capacity, something his son, Jim*, does not dispute. The council that supervises his care felt it would be in best interests if he moved into residential care.

However, Jim says his father is happier and more relaxed at home, where he spends two days a week. “He is more knowledgeable than he is in the care home, he recognises friends and neighbours, while he’s completely lost in a care home,” he says.

Jim says the council believes it is too dangerous to let his father be cared for at home. However, an assessment by a local home care provider found Jim could be supported to care for his father at home.

He says meetings with professionals are tough, adding: “You feel like a bad lad at school in front of a board of school governors.”

A professional advocate was appointed as Harold’s relevant person’s representative, leaving Jim feeling sidelined. This has removed his ability to receive legal aid to appeal against the decision to keep his father in care.

Despite this, Jim has gone to great expense to have an independent assessment of his father’s condition carried out. However, he claims his father’s medical records show he was given a sedative the day before his assessment, leaving him drowsy and confused.

Meanwhile, Smith continues to pursue his fight through the Court of Protection.

*Not their real names

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This article is published in the 9 September 2010 edition of Community Care under the headline “A conflict of best interests”