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.
‘Proper balance’
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!
‘Defending rights’
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.
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I’m glad Emma found a true friend. Those were my thoughts as I read your piece. She needed social work support to enable her to find real friends, and similarly the man visiting his father needed emotional support possibly to help him to come to terms with what was happening with his dad, and to understand how best to relate to him. Possible other longstanding relationship issues. None would have been addressed by a visiting ban but real long term harm done.
Retired early from social work, I agree that this legislation looks like an attempt to cover professionals backs rather than the expensive but morally superior option of longer term social work support to people in need.
In the 1980s in social work training we debated whether social workers were agents of social control. How could we have guessed how much more apt this consideration would be 30 years later.
Hello Joy, thank you for your thoughts.
I am certain the people proposing this Bill are not doing so to cover backs, it is borne of genuine concern for people. But it would be a very safe bet that practitioners from various agencies, social services included, would use it against people.
It happens with the MCA where the professional is concerned about something a person is doing; the first question they ask is “Has the person got capacity” which is completely the wrong way of doing things, it is to put the cart before the horse, or in this instance, to put the desired outcome before the assessment. If a professional wants to assess capacity because they REALLY want the person to not have capacity so that they can then justify intervention, then what chance has the person got?
Thank you Ian for what I think is an excellent, well argued article. The problem with this type of legislation, as is the case with assisted dying proposals, is how can disabled people be protected from having our right to control our own lives removed. Whatever the honest and well meaning intentions inevitably such legislation would be used to control the decisions and activities of people determined by others to be ‘vulnerable’.
Many thanks Sue. I would suggest the answer as to how disabled people can be fully treated as equal citizens is through culture change. The law – if applied – will enable the conscientious practitioner to treat disabled people as equal human beings. But the culture of paternalism goes deep, especially where the relevant person has a mental impairment, and I fear it may be decades in the undoing.
The good news is SW students and newly qualified SWs are coming out of university with a passion for human rights, so I am optimistic, really!
Sorry, but depending on your level of cynicism, either there is nothing ‘inevitable’ about a new law being used wrongly or this always happens so what can we do but try or not bother at all? A careful process of discussion and consultation is needed to set out what powers have the greatest clarity and the least chance of being misunderstood or misused, not statements like this.
normal dichotomy, someone’s vulnerable person is somebody else making making an unwise decision.or should that be the other way round.
If it all goes horribly wrong and somebody is being held up as accountable, what did you do to prevent this situation
. Last year I was involved with the case of a man who wanted to be left to live his life how he wished, he had a strong belief in God, made decisions which invariably put him at risk and harm, and live on the streets,” God told him to” ” God will provide” which he did.
This put him in local authorities, as well as the wider community. Mental capacity was considered on a daily basis, an opportunity to move to a more suitable environment, was considered as he also had a terminal illness.
Society still struggles with the ideals and notion that individuals clearly vulnerable by their own state of affairs cannot be swept, picked up and moved to a more suitable place or venue for their own good.
Making him safe (whatever that meant) would make him miserable (see Lord Justice Mumby statement on that) and social worker had to deal with the wrath of concern over police, local authority and health. The use of the mental capacity act highlighted. he made unwise decisions, but had capacity, he could not be detained under the mental health act, though there elements of of criminal actions, public nuisance. Inherited jurisdiction could have been considered, but as a colleague said there would be lots of professionals actively fighting not to get involved, and any forced intervention would ultimately infringe human rights act ,taking away his rights. The best that could be offered, and rightly for him was to ask him frequently was he okay, did he need any help, which was offered, daily, right up until he decided that hospital admission .but like the Swan social services was seen to be doing very little was paddling furiously.
Sometimes that’s all you can do; keep offering support, be there for the person if ever they change their mind.
But there might be an occasion where the person tells social services that not only are they rejecting their offers of help, they don’t want social workers to knock on their door, not even to telephone to ask how they are doing.
If that is what they insist upon then so be it, but I would strongly suggest any social worker in that situation should raise the matter with senior management and legal dept and record that an application to the High Court was at least considered and the reasons why that was not taken further.
Super piece of writing.
The proposed Bill seems well meaning enough but I feel that it is rather naive and perhaps grants the state with more integrity than its sometimes worth.
Despite the MCA celebrating its tenth birthday, the much needed culture change that it needed to bring has failed to materialise, especially in the NHS and some Local Authorities. Therefore I think the likelihood of the proposed legislation used by the state to override the rights of those who are worrying others by their behaviours will be extremely high.
I think the Bill would be a huge mistake and would further embed the views of many within the state who feel that the rights afforded to us all through ECHR & the principles of MCA should not be afforded to those who may very well benefit from health and social care support but are choosing a different path that us right for them, similarly to Emma.
Long live Article 8.
It seems to me that what the MCA is to the Court of Protection, so this bill would be to the High Court acting under the inherent jurisdiction. That’s a good starting point, and if I would trust anyone to tread carefully as they move forward, it would be Alex.
excellent article.
a person with capacity and a progressive neurodegenerative disorder which was and is very slow in progression needed to retain her bath for pain relief, insomnia and dystonia. under an adaptation grant she was made get rid of it, to put in a ‘wetroom’ for her long term needs, according to the occupational therapist.
despite owning the property she had OT’s come into her home and measure up her space reshaping her home according to their wishes.
which came first in this instance, her ability to decide that her pain was the major issue in the present and in the future and if and when a wetroom was needed then is the time to decide what to do.
which came first, the fact the woman owned the home and therefore spent a huge amount on it, and an adaptation grant is to make life better for disabled and vulnerable adults but does a small grant of a local authority mean more than home ownership.
all these subtle, awful questions need very distinct and wise answers. at all times, a homeowner, who has capacity is able to decide what is best, and always will know
so this article was invaluable to point these things out! when and when not to interfer basically