By Ian Burgess, a Mental Capacity Act lead
I once worked with a young woman called Emma (not her real name) who had a mental impairment and would sometimes go into town alone, whereupon two young women would sometimes meet up with her. Emma would withdraw £200 from the ATM, which she would share with these people. After an hour or so, the two women would desert her. The care home staff where Emma lived wanted to prevent Emma from going out on her own, they said it was ‘mate crime’ and that Emma was being financially abused.
I met with Emma and put this to her. She said: “I know they are not my real friends, they only want my money. I’m not daft.” I asked what would she do if it happened again? She said: “The same probably. It’s worth £200 to me because it feels like I have friends, I can pretend to have friends even if it’s just for an hour.”
Emma’s story made us feel sad and angry that people would take advantage of her and we wanted to protect her. But she did not want us to do that. She had the mental capacity to make the decision and, putting it bluntly, she did not care how we felt.
Vulnerable Adults Bill
Alex Ruck Keene, barrister at 39 Essex Chambers, Autism Together, and the Association for Real Change submitted a proposal to the Law Commission for a project on a Vulnerable Adults Bill as part of its 13th programme of Law Reform. The Law Commission has selected the proposal for further consideration and a final decision will be taken in May 2017. Read more about it here.
‘We must walk away’
I also worked with a man who was nursed in bed at home but his son – frustrated with his dad’s deteriorating health – would shout at him. We wanted to stop the son from shouting at the older man, possibly apply to the court to prevent him from visiting altogether, but the man told us and the police to do nothing. He acknowledged it upset him when his son lost his temper but he loved him and wanted him to be around. In time, he died at home with his son visiting him to the end. As social workers with both children and adults know well, from the perspective of the person a not-very-good family is usually better than no family.
Had the legislation been available, we could have over-ridden their decisions to protect them. They would have been protected from abuse, so we would feel better, but would Emma or the older man feel better? If a capacitous person wants our support then we give it; if they don’t, we must walk away, no matter how upset or concerned we are.
I am reminded of that much quoted speech by Sir James Munby (‘When is Safeguarding Abuse?”) in which he says that if local authorities are to justify intervention then what follows must be better than what went before. I have no doubt the intention of the Vulnerable Adults Bill is not to wrap all people in cotton wool, but to take what Sir James calls a proper balance in supporting those “less well equipped” to deal with risk than others.
However the proposals for a Vulnerable Adults Bill concern me because, although I have little doubt that while the courts would continue to respect the right of an individual to make an unwise decision, where such is to be over-ridden that must be by a higher authority than a council employee. Indeed, I don’t see why the inherent jurisdiction of a judge sitting in the High Court does not already meet this need. And as I see it, treating people who are vulnerable because of their disabilities differently from all other people is discriminatory.
‘Culture of protection’
In practice then I fear such an Act would be used against people, not to support people, and there would be little consistency in its application by health and social care workers. The culture of paternalism and protection is still deeply embedded in some quarters. For example, I have been challenged many times about the outcome of a capacity assessment I have completed, but not once when I said the person lacked capacity to make the decision, only when I said the person had capacity. That is absurd; the assumption of capacity unless proven otherwise should be well established but it is not, even ten years on.
I doubt those drafting the Bill would want this to happen but in practice many people with dementia (or not!) in hospital making the natural decision to return to their home would be deemed ‘vulnerable’ by ‘concerned others’ and needing protection. The ward staff would want this because they would not want to be held responsible in the event something bad happens to the person. This paternalism exists now in spite of the law preventing it.
In my experience some professionals are not afraid so much of something bad happening to the person, they are afraid of something bad happening to them as a consequence of something bad happening to the person!
I tell social workers all the time that if they do what the MCA says then section 5 of the Act will protect them from liability. But how could a social worker trying to defend the right of a person to make an unwise decision deal with such ward staff or police officers or concerned neighbours telling them that they must do something and citing the new law? Who among us wouldn’t be more worried about their job than the rights of the relevant person?
The MCA is already intentionally used against people, so what then would be the chances of a person unfortunate enough to be objectively considered ‘vulnerable’ appearing on the radar of health and social care retaining their autonomy?
By the way, in time Emma found a real friend and moved out of the care home and into a shared flat and those two women lost their free money. What she had needed was support from her social workers, not for her social workers to decide what was best for her.