by Ian Burgess, Mental Capacity Act lead at Calderdale council’s adult services
In May this year I became the Mental Capacity Act lead in Calderdale’s adult services. Two months before I took up the post, the Supreme Court announced its landmark ‘Cheshire West’ judgement. The ruling led to a lowering of the bar of what constitutes a deprivation of liberty and, as a result, inevitably sparked more demand for assessments under the Deprivation of Liberty Safeguards (Dols).
Six months on from the ruling, and what a difference it has made. It is now hard to imagine a world pre-Cheshire West and the impact it has had on social work teams across the country. Local authorities have been inundated with requests for Dols authorisations, teams are having practitioners drop everything to meet the demand, and speakers at conferences are warning that, in trying to keep up, Dols authorisations could become nothing more than a rubber-stamping exercise.
As MCA Lead my first reaction to the judgement was that it could lead to less person-centred practice because of the demand to complete the increased number of assessments within the same statutory timescales. That would, in turn, mean more work for our social work teams as colleagues who were best interests assessors (BIAs) were diverted to more Dols work.
However, those concerns for human rights have inspired us to do more than cope but to try to do better than before. I am determined that in Calderdale we will not degrade the purpose of the Dols by considering referrals to be no more than an expensive bureaucratic process. Instead we see them as an opportunity to improve the lot of the people we serve.
Human rights are for everyone
The take-away message from the Supreme Court judgment for us has been that human rights are for everyone. It is a really positive message. It is social work values enshrined in law! It means there is no sliding scale of rights for citizens’ rights. For example, a person with a learning disability in a care home has exactly the same rights as a businessman with a brand new Range Rover parked on the driveway of his four bedroom house. They are identical.
Yet I still often see evidence of how older people or people with disabilities are treated differently when they appear on the radar of health and social care teams, the police or care providers. Decisions are made for them without any reference to an assessment of the person’s ability to decide for themselves or evidence of enabling them to decide. Would we treat the man with the nice house and the Range Rover in the same way? It’s funny how quickly the ‘Range Rover test’ has been adopted by our social workers in Calderdale.
As the UN Convention on the Rights of Persons with Disabilities notes “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”
The benefits of the ruling
I’d be surprised if any social worker sees the Supreme Court judgement itself as a bad thing. Prior to the ruling, a person not objecting – or unable to object – to their care and living arrangements may not have been deemed to need a Dols authorisation. A BIA may have concluded that the lack of objection was evidence of a restriction upon their liberty rather than a deprivation of liberty.
That meant that people who were unhappy but unable to express objections would not have the benefit of the safeguards. They would not have their care plans scrutinised. They would not have a BIA and a doctor looking closely at whether there really wasn’t any other less restrictive alternative of providing for the person. They would not have had a right to challenge the decision or to the support of an Independent Mental Capacity Advocate (IMCA).
I passionately believe that one of the biggest boons of a Dols authorisation is the right to support from an IMCA. This ensures that fewer people will get lost or forgotten in any care system.
I am proud to work with social workers here in Calderdale who fundamentally believe that upholding human rights is their core purpose and that the Supreme Court judgement acts as a reminder to them of the purpose behind it all, that is to uphold people’s legal rights.
We genuinely feel honoured that the state trusts us to enable the people to make these decisions and, if there is no alternative to depriving someone of their liberty, to be sure that what is happening is in their best interests and is the least restrictive way of doing it.
The extra work is the price we pay for being true to our values as social workers and protecting civil liberties. I think we perhaps lost our way in recent years and allowed ourselves to be seen as bureaucratic managers of care, with a ‘duty’ to keep people safe regardless of what they themselves wanted to happen. MCA and personalisation go hand in hand. The Act enables social workers to practice social work in partnership with the people we are here to serve.
And beyond the work of BIAs, the legal necessity of Dols helps me to support colleagues across health and social care to think much more about what we can do to promote the liberty, autonomy and right to privacy of people who use services.
The Dols are not perfect by any means, and things will change again in the months and years to come, but they enable people to have a better quality of life. If we get this right, the Supreme Court judgment means more people will benefit.