By Lorraine Currie, DoLS lead and Best Interests Assessor
The fifth principle of the Mental Capacity Act – ensuring that less restrictive options are explored – is one of the most important in social care practice. It is also one of the most commonly overlooked.
The ability to identify restrictions in care plans is increasingly important for social workers in community teams. Since the Court of Protection’s Re X procedure for community deprivation of liberty cases was introduced, it is often social workers carrying out the necessary assessments and decision making to prepare cases for the court to consider.
Yet identifying restrictions in care plans instinctively seems more straightforward than it is in practice. In recent years there has been a tendency for plans to become broad overarching documents. Many lack the specificity and ownership required by the court and omit the minutiae of important detail that is key to ensuring less restrictive options are pursued where possible.
So how do you assess all restrictions which may be present? What do you need to look out for? ADASS and the LGA have released a tool to help practitioners identify restrictions, alongside a range of other resources to promote an effective understanding of the Mental Capacity Act, including the Deprivation of Liberty Safeguards, in local authorities.
Physical liberty is disability neutral
At the core of this guidance is a fundamental question – is the person as free as anyone else, with or without a disability? Physical liberty is after all disability neutral. That is a powerful statement yet not one, I suggest, that is the reality experienced by many people with disabilities, who are often subject to the arbitrary power of others.
Our tool asks practitioners to consider a set of specific domains where liberty can be restricted and ask – do I have this experience? Among them are freedom of movement, eating and drinking, washing and toileting. Also personal appearance, living environment, family and social life, privacy and healthcare.
Many of these restrictions occur either because of the way society is constructed or because of the disability itself. Yet some of them are common to all of us. When delivering training to social workers on the Re X process I often start by asking them how they themselves experience liberty. How might someone with disabilities experience liberty differently? The person in a wheelchair may be able to decide to go ice-skating but in reality can they if they are restricted by their mobility? The person with a brain injury may be free to travel the world but can’t form the intention to do so.
Range of restrictions
Working through the tool will soon begin to open the eyes of the person using it to the range of restrictions which may be imposed in a care and support plan. Usually restrictions in care plans are imposed in the person’s best interests. The aim is to ensure they receive the care and support they need, however, the full consideration of the fifth principle is often overlooked.
If the questions are not asked during a social care assessment then the social worker may not be aware of some significant restrictions which may be in place.
The tool encourages practitioners to ask questions. Could this outcome be achieved in a less restrictive way? What options have been considered? What has been thought of, tried, rejected? Can changes be made to the environment to enhance the person’s freedom of movement?
Can a programme be put in place which will mean the person will be free to come and go? Does a risk assessment simply need reviewing? Do simple actions seen as benign in insolation, in fact amount to a restriction when considered in a holistic picture of an individual’s situation?
Take freedom of movement. This will range from the obvious – “the door is locked” to the less obvious “I can go out when my name is on the rota” or “I can go out as long as I tell someone”. And as a Best Interests Assessor I have seen many times measures being left in place to manage a risk long after the risk has ceased.
To get to a place where the question “can I achieve the same thing in a less restrictive way” is always considered, is true embedding of the MCA. When practitioners are comfortable and competent in identifying restrictions it will make applying the deprivation of liberty acid test more straightforward.
The person with care and support needs will be impacted upon from all sides. By society, by their own disability or mental impairment and by the decision making power of others. Where we, as social workers, BIAs or other practitioners, exercise this power it is for us to use it fairly, in a just way which ensures the person’s autonomy and decision making is promoted not arbitrarily denied.
There should be plans in place to reduce restrictions, regular reviews of risk assessments, and people with disabilities allowed to change and develop as they learn and grow.
I hope the tool will be of use to direct care providers considering their care and support plans and to social workers who are assessing need and preparing care and support plans. Do let me know your thoughts.
Lorraine Currie is a Best Interests Assessor, a DoLS Lead for a Local Authority and provides freelance work for ADASS/LGA and others.