I seem to be hearing more and more stories of vulnerable people being admitted to hospital from the care of their families with physical complaints, and then safeguarding alerts are raised and the family is told the person can’t go back home because of these safeguarding concerns. This often concerns people with dementia with pressure sores.
Reply our online discussion on social work under the Mental Capacity Act
Gain practice insights and advice from social workers and experts on social work under the Mental Capacity Act by replaying our online discussion on the issue, which took place on 26 February.
Participants discussed the case of a woman with dementia facing discharge from hospital into a care home because of safeguarding concerns, when her family want her to return home.
The discussion was led by panellists Elmari Bishop, Rachel Griffiths, Mental Capacity Act development manager at the Social Care Institute for Excellence, and Mr and Mrs E, the carers in the Bournewood case that led to the introduction of the Deprivation of Liberty Safeguards.
Care homes would do better at meeting the vulnerable person’s needs and would do better at keeping them safe 24 hours a day, families are told. But is this true? In its State of Care report for 2011-12, published last November, the Care Quality Commission said that, among nursing homes, 72% were meeting the essential standard on providing care, 80% the standard on meeting nutritional needs, 83% the standard on safeguarding people from abuse and just 67% the standard on medicines management.
What case law says
In the A&C judgment, which concerned whether two incapacitated people cared for at home had been deprived of their liberty, the judge stated that the onus was on the local authority to show that it could do a better job than the family.
The family’s compassion and love for the person they care for must surely count for something, even when there is not 24-hour care and supervision at home. Care homes are not always better than care at home and we need to consider this when we are making best interests decisions about where an incapacitated person would be best looked after, especially if you have a family who is willing to have the person back home.
Too often though the pressure on discharge teams to avoid ‘delayed discharges’ seems to push people into premature placements in care homes. It is too often seen as the quicker and easier option and little or no consideration may be given to arranging a proper care package at home.
Complying with Mental Capacity Act principles
But we need to remind ourselves of the best interests principle, under the Mental Capacity Act 2005 (MCA), that places the person and their best interests at the centre of our decision-making processes, not what suits us or what is more convenient for us as service providers and social care teams.
And the MCA’s least restrictive option principle would require evidence that care at home, as the less restrictive option, has been tried and failed or that is would be a totally unrealistic option, before recommendation of a care home placement is made.
Recent case law makes clear that, if we really do feel that it is not in a person’s best interests to go back home, or back to the home of their family, and the person and/or the family is objecting to this decision, we need to seek permission from the Court of Protection to authorise such a decision.
Deprivation of Liberty Safeguards is wrong approach
A Deprivation of Liberty Safeguards (Dols) authorisation, which is often used in such cases, does not give you ‘permission’ to refuse for a person to return home or to remove a person from home in the first instance, especially where there is family involved who wants to look after the person.
Safeguarding concerns are also far too often quoted as justification for removing or not allowing a person back home, but safeguarding concerns do not give us sufficient ‘permission’ to interfere with a person’s right to private and family life, under Article 8 of the European Convention on Human Rights. We need to go to court with such cases.
It’s clear there are no easy answers and what is right for one may not be right for another, but at the very least we need to always have an open mind in these cases. And we should never forget to consider every person’s individual circumstances, to listen to families and to keep in mind that a care home may not be better than care at home.
Elmari Bishop is consultant social worker and lecturer practitioner for statutory practice, training and development at South Essex Partnership NHS Trust, and College of Social Work spokesperson on the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards.