Advice – what to do to respond to historic abuse allegations

Claims of historic abuse get a lot of press coverage. How do you handle getting involved in a scandal? Many social workers and local government officials get mixed up in their local authority’s reaction, but increasingly social workers work for a private sector organisation, or a small organisation like a hospice that may not have the legal backing or the experience to react well to getting into such a situation.

Legal advice from an experienced law firm (link to the advice) suggests six things you should do, and I’ve added a bit of my own advice from experience, too:

• as soon as you hear about the possibility of something coming up, get together as much information about what happened as you can find, so that you’re not on the tv news giving the impression you don’t know what’s what.
• check your insurance; also my advice would be to  and check in with any potential supporters, such as committee members, trade unions, professional associations and personal friends who may be knowledgeable and experienced in such situations
• make sure you have a consistent message, think about the damage to your reputation and be ready to say more than ‘no comment’; also my advice would be to have a message that is more than saying how good you try to be – say what you’ve actually done and achieved
• information  requests about something in the past are often advance warning that something is about to hit you; be alive to that – make sure you know what you’re required to say (and not to say – confidentiality, but don’t invoke data protection unless you’re really sure it’s relevant, often it isn’t) and what you want to say; my advice again: use the opportunity of an early request for information to research things and plan any responses in advance, so you’re ready
• information requests about deceased persons are still affected by confidentiality requirements – my advice: check the law and the information commissioner’s guidance on access to health and social care records before saying anything; another reason for being well-prepared
• notify the relevant authorities of anything you should and keep a record of the notification – I always used to do it in writing and keep a note of what I said when people rang me up; I also used to grade my reports in levels of horrendousness, so that they couldn’t say that I hadn’t made it clear it was serious if it was, and so that I could not be accused of exaggerating something.

A gilded cage is still a cage – Supreme Court deprivation of liberties decision

A Supreme Court decision on some of the most discussed of Deprivation of Liberties cases is now reported. A legal commentary indicates that these represent major changes in the DOLS law; the legal commentary suggests:

There are likely to be thousands of people who were not considered to be deprived of their liberty yesterday who will be today in light of this judgment.

It recommends that all local authorities and NHS organisations should review their caseloads; they will probably have to issue DOLS documentation in numerous cases where it was not thought necessary.

The judgement by the respected Lady Hale reviews the history of DOLS law in the UK and European Court of Human Rights decisions, some of which took place after previous lower courts in the UK had decided the cases in question here. It’s a very good primer on the existing law, and of course, as always with Lady Hale, very clearly written and calling on the original sources. No unnecessary legal jargon here.

Here are some useful quotations:

(at 34) People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.

(at 35) …it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.

(at 36) The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD)…

(at 37) …what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state…

45. In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

46. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

And even a good quality, but over-controlling, social care provision aimed at providing for a disabled person’s well-being still deprives them of their liberty, so you have to apply the safeguards.

For social workers and providers of social care, this makes it clear that even if what you are doing is for someone’s protection, and even if disability may lead to concern for someone’s safety and well-being, close supervision and restriction in the freedom to decide where you can go is still a deprivation of liberty, and requires the use of the safeguards.

Link to legal commentary: Supreme Court hands down decision on the joint appeals of Cheshire West and P&Q (MIG & MEG) – the Court ruled that all three were deprived of their liberty – Lexology.

Link to the Supreme Court Judgment Look for 19th March 2014 and click on ‘judgment’ in the right hand column in the cases of P and P and Q to get a pdf; the pdf is the same in both cases, since the judgment covers both cases. P and Q is what has been known as MIG and MEG in earlier proceedings.

Tips for voluntary organisations dealing with NHS and social care commissioners

A legal advice newsletter points out that with voluntary organisations increasingly being commissioned to provide NHS and social care services, they are also increasingly being asked for loads of information, but also need to be supported in doing so. You have to ask, as ministers in Parliament do when asked questions by MPs, whether the cost of collecting the data is justified. If it’s a real drag on service provision, and/or the commissioner won’t pay adequate admin costs, the voluntary organisation should seriously consider saying ‘no’ or ‘pay us for it’. Here are the points the newletter suggests a volorg should consider:

• The time involved in giving this support. Smaller organisations in particular need to ensure costs are covered.
• Organisations need to ensure any information they provide is not used out of context or in any way that could damage their reputation.
• Confidentiality – if the information is not in the public domain, does your organisation have the right to pass it on?
• Data protection – take care in passing personal data to commissioners as you will need to meet your data protection obligations.

I’ve often thought that voluntary organisations are naive about whether the local NHS or social care administration is on their side: my answer is that of course friendly relationships are necessary, but they also need to accept that volorgs take a business-like approach to  the relationships. Commissioners often think that because they’re paying the volorg staff are inferior in some way and should be expected to jump around doing whatever they decide. Good relationships work from both ends of commissioning; the volorg is not a supplicant, but an equal professional partner in providing a service. The article sees supporting the commissioning relationship as an important role for the commissioner.

Link to the original article on commissioning support

 

Scottish legislation on Self Directed Support

Self-directed support is what is sometimes called ‘personalisation’ in which social care is managed to some degree by the person receiving it. The new Scottish legislation, the Social Care (Self-directed Support) (Scotland) Act 2013, comes into force in 2014, and then will be rolled out over the following five years. It offers people five choices:

• Option 1 –  Direct payment – local authority make payment direct to the individual who then employs a carer.
• Option 2 –  Person selects the support and local authority arranges it.
• Option 3 –  Local authority selects support and arrange for its provision.
• Option 4 –  A mix of the above.

A link to a legal comment: Self Directed Support – The Right Direction.

Changes in liberty safeguards:kidding yourself you’re not locking someone in

The Deprivation of Liberty safeguards are part of the Mental Capacity Act 2005 which require care agencies to get authorisation before restraining people, for example refusing to let them leave hospital or confine them in their room. An interesting result of the changes to the NHS is that local authorities are taking over as supervising bodies for hospitals, because the Primary Care Trusts are being abolished (the local authorities have been given money to do this; another example of the costs of the reorganisation which I bet the Department of Health didn’t think about).

Link to Department of Health document.

This is interesting, because there is a widespread view that hospitals don’t bother all that much with the safeguards. Neither do a lot of care homes, but at least the local authorities that are supervising them are not usually also the managers. It will be interesting to see whether this change makes much of a difference.

A related slice of information comes out of the recent CQC report on care services (see p 103).

There were a significant number of concerns about the use of seclusion to manage challenging  behaviours. Safeguards were not always implemented and, in particular, poor recording did not give a clear picture of the use of seclusion and longer-term segregation.

A range of different terms were used to describe circumstances in which people might effectively be detained in seclusion: “Nursed in his room”, “Placed in the low-stimulus area for a sustained period” or “Chose to be in the safe-care suite”.

It seems that nurses and managers may be kidding themselves that they are not locking people up, when they are doing the equivalent and calling it caring. Nurses and social and care workers (and their managers) need to be a bit more self-critical about what they are really doing.

Link to the CQC report.