The duty on councils to provide direct payments will be extended to people who lack capacity under regulations produced last week by the Department of Health, and it seems to have thrown out some safeguarding concerns.

The payment would be managed by a third party who would hire personal assistants and buy in care as necessary.

If the third party is a close family member of friend who has cared for the service user they would not need to undergo a CRB check (all other groups would have to). They (family or friends) in turn would not have to seek CRB checks from personal assistants they hired to care for their loved-one.

Some adult protection groups see these arrangements as much too lax - I've heard calls already for all PAs hired by third parties (regardless of who the third party is) to face mandatory CRBs, for instance.

It follows a Skills for Care survey which found that half of existing direct payment users did not seek CRBs from strangers whom they hired as personal assistants.

What do people reckon?

this sounds aa bit dodgy to me. it seems as though it would be fairly  easy for financial abuse to happen. just because someone is a close family member or friend does not mean that abuse wont happen.

why do the DoH feel that they need to do this? i understand that they want to empower people to take control of their lives but in the instance of someone who lacks capacity surely it is better that someone completely impartial looks after their affairs.

Hi Lizzer,

I wanted to respond to what you said:

lizzer:

why do the DoH feel that they need to do this? i understand that they want to empower people to take control of their lives but in the instance of someone who lacks capacity surely it is better that someone completely impartial looks after their affairs.

 

I'd say that this is for many many reasons. For example, I know a woman who has a daughter who - in these terms would be said to 'lack capacity' (I'd prefer you to know that she's a wonderful human being who loves to make sure that nobody is ever left out, who has a wicked sense of humour, and who loves to be a host at events). She also relies on her mother to stay alive (due to a serious and complex health problem). Her mother, now receiving a small direct payment, can co-ordinate the support her daughter receives - directly hiring staff, teaching them what they need to know, and making sure they treat her daughter with respect - making sure that the support helps her daughter to actually have a good life.

The previous arrangement wasn't satisfactory. A run of impartial people - people who move on every couple of years - trying to coordinate support from afar. All this does is to make things messier. Instead of being in charge, my friend had significantly less control over the workers (who of course would be very clear that they weren't working for her, but for her daughter, so what was she doing interfering) and certainly not over who they were, they would change more often, and she'd have to continually be coordinating with the impartial person as well as with the workers. So the workers were police checked - bid deal! Like that's going to make things much safer.... (actually, in this case the direct-payment workers also have been police checked, but that's beside the point). Which would you prefer if you needed people to interfere in your life? Strangers tramping through your house who have been declared to be suitable just because your local authority says that they are - after all they've been checked... OR would you prefer to select those strangers yourself (perhaps with the support of the local authority to provide a back-up check of some kind)? I know which option I'd choose.

There are real issues here - I'm not denying that. Security and safety IS an issue - and we have to be creative in working out how to keep people safe, and how to recognise abusive situations. But there are many many many family carers who are going to be the centre of their relation's life for years to come - and who are deeply honest people. Why stick an impartial person in there to make things more complicated? What do we gain?

By the way Mithran... Isn't this somewhere where Scotland is ahead of England. I don't keep up to date with the detail of each piece of legislation and how it differs across the border, but I think what you are talking about is already very well underway in Scotland. Perhaps it would be good to collect the evidence of how this works in practice (thus saving the need to speculate). I think that one of the problems in Scotland has been to work out how to allow people who are employing their own (or their family member's) staff directly to also work with the police check system. Various ways have been found around this but it feels a bit messy. One option I know of has been to have a voluntary sector body doing the checks on someone's behalf - but even this is a bit messy because there are limits on what this body can report. There have also been local authorities getting themselves tied up in knots about being liable. In the main, this was/is one of those barriers that turns out not to really be there. You know the kind of thing - two or three years with people being told 'we're waiting for guidance on this really difficult issue from the Scottish Government" before the authority just gets over it and gets on with it and stops worrying.

Yes, it's clearly a difficult area. I think the people I've spoken to who have concerns about safeguarding are more perturbed about the category "friends who have previously cared for the service user" being able to manage a direct payment without a mandatory CRB check, than close family themselves. I suppose that stems from anecdotal evidence of abuse by friends.

In terms of Scotland, these are the regulations that govern the use of direct payments:

From what I can gather, two key differences are that:-

1)  Anyone hired by a direct payment recipient must undergo an enhanced disclosure check. If that does not happen the council can withdraw the direct payment (though at the same time the authority must pay for the check). However, direct payment recipients can still hire someone who would have been barred from work had they been applying for a standard care worker post (due to say a serious criminal conviction) unless it is for a child care post (i.e. for a disabled child).

2) Someone lacking capacity can only be given a direct payment with the consent of their attorney/guardian (i.e. the person defined as being responsible for taking decisions about their finances/welfare) as defined by the Adults with Incapacity (Scotland) Act 2000. In England, there is a similar emphasis on people granted powers under the Mental Capacity Act 2005 deciding on or managing the payment, but it appears to be a bit more complicated (and, frankly, too complicated for me to understand at present!). It appears to suggest that in normal circumstances a direct payment for someone who lacks capacity must require the consent of the person's "surrogate" (as well as the person who would manage the payment); a surrogate is either a deputy or attorney (as defined by the Mental Capacity Act 2005) appointed specifically to manage a person's direct payment. However, it seems to suggest that if no surrogate exists it is open to the local authority to go ahead with a DP so long as it meets a series of other conditions (consulting family, best interests etc).

I may have that all wrong but I think that's what it says!

 

One of my service users will soon be in court alleging that a personal assistant who had cared for her for years, has defrauded her of at least £20,000. The service user has capacity but was also subjected to other abuse, including social isolation and difficult to detect violence such as hair pulling, which stopped her from informing anyone about what was happening. It was only when the alleged perpertrator started shouting at her victim more frequently, that neighbours phoned social services to report it. The alleged perpertrator had previously cared for the victim, when she was employed by an agency pre-CRB days, and she pursuaded the service user to use Direct Payments and became the only carer. It has been estimated that the alleged perpertrator may have creamed off over £100,000 in Direct Payments, claiming for hours never worked, but getting a fearful service user to sign her time sheets.

This so called carer has been allowed to continue caring, as she is innocent until proven guilty. Only when she appears in court, will her name go on the CRB register.

 Whilst I am in agreement of Direct Payments, I feel there are not enough safeguards in place for our most vulnerable service users.

 

That's a really valuable example Tintin. It raises some interesting questions.

One thing that strikes me is that it sounds like the abuse was happening before the direct payments - so that what it indicates is that people can be just as vulnerable to abuse with direct payments as without. So in our enthusiasm for a new way of working - which people have had to fight to get put in place over many many years - we must remember that like any way of working it is far from perfect.

There are interesting questions of how we check that this kind of thing isn't happening if someone has a direct payment.

Particularly interesting is that - as always - a CRB check is worth doing, but tells us very little, if anything, about whether an employee (of any sort) is 'safe'. People get so hung up on whether a CRB check can be done in particular circumstances. I've had discussions many times about this when thinking about alternative ways of working. For instance recently I was doing a consultancy/training day on 'inclusion'. The group of participants were keen to point out that "we already do inclusion here". But when I showed them what inclusion would look like to me (obvious stuff like people being introduced to other people who might become friends, getting a rich life, and so on) their initial response was "but we couldn't do that because we couldn't do a police check on all those people so the person would be at risk."

This is silly… we can't work in a way that leads to someone's real inclusion – which would make them safer because they wouldn't be isolated (like the person you spoke about Tintin) – because we're afraid of not being able to do CRB checks.

We have to work out better ways of making sure that someone is safe. There are loads of options I think – but at the heart of most of them is that there must be someone (or some people) who gets to know a vulnerable person well – to the extent that such trust is built up that abuse would be revealed. That person has to be a constant contact over many years – so it doesn't work to send in someone who just happens to have the right job description every so often. THEN we can worry about doing CRB checks – but only as a helpful addition to the processes already in place.