New excuses not to assess adult community care needs?

How likely does it need to be that a person who wants to be assessed for adult community care services from a local authority will actually be in need of them? That is the question posed in a new case decided today, NM, R (on the application of) v London Borough of Islington & Ors [2012] EWHC 414 (Admin) (29 February 2012).

I wasn’t aware this was a new question. I thought I knew the answer. It was this: it doesn’t need to be very likely at all. It’s a low threshold test. Most excuses for not assessing are bad excuses for not assessing.

And I thought the answer flowed pretty inevitably from the wording of the Act:

…where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority-(a) shall carry out an assessment of his needs for those services…

There are two mays in there, and one shall. The two mays mean that the duty to assess remains even though you are uncertain firstly about whether you will need to provide services, and second about whether the service user will need them. The first uncertainty means it is no excuse to say, “it might be a different authority”; or “they might be financially ineligible”; the second uncertainty means it is no excuse to say “they might fall below the threshold of eligible need”.

Which makes perfect sense to me. You carry out the assessment to address the uncertainty. Once you have completed the assessment it stops being uncertain.

Today’s judgement seems to me to mangle the otherwise plain meaning of those words. The circumstances are as follows: NM is detained, awaiting parole, wanting to move back to Islington on release, and to assist in its parole decision, the Parole Board wants Islington to assess. Islington says there is no duty to do so, and the court agrees.

Sorry, this analysis is going to be tortuously legalistic for a bit, and it all centres on this paragraph of reasoning:

The critical question is whether the Claimant is the person who “may be in need of any such services” within the meaning of that phrase in section 47(1). In my view, on proper interpretation of that phrase, to bring himself within the scope of this section it is necessary for a claimant to show that there is a sufficiently concrete and likely prospect of him being in a position where community care services may need to be provided to him if he has relevant needs which would require to be met by the provision of such services. The words “may be in need” are in the present tense and do not import a flavour of coverage of possible needs which may arise in the future… In context, the word “may” is apt because it indicates that there has to appear to the relevant local authority a significant possibility that the person in question might have a present need for community care services to be provided to him by that local authority… [paragraph 77]

Looks wrong to me! The paragraph conflates those two different uncertainties, with worrying practical consequences. The first uncertainty is whether Islington is going to need to make provision; the second is whether NM is going to need services. The court thinks it is significant that “may be in need” is present tense. No, it’s not. Those words are to deal with uncertainty about need, not timing. NM has present needs. He’s not presently in Islington, but his needs are not speculative future needs, only his location is speculative and future. And location is dealt with by the first uncertainty, namely whether Islington is going to have to meet the need. Is Islington one of the contenders that may provide any services (first uncertainty) yes it is: it should assess his need. QED.

The conflation of the two uncertainties is apparent, embedded in the wording, if we tease it out:

The critical question is… “may be in need of any such services” … on proper interpretation of that phrase…  it is necessary for a claimant to show… community care services may need to be provided… [my emphasis – from paragraph 77]

See? The judgement is saying may be in need (second uncertainty) means may need to be provided (first uncertainty).

The worrying practical consequences are that local authorities may refuse to assess need by second guessing whether they would have to provide anything. In the present case, by saying that his move to Islington is uncertain. By extension, if two local authorities dispute ordinary residence, both might use this reasoning not to assess (instead of assessing on the basis of possible future liability pending the dispute outcome). Or local authorities may apply the “likely prospect” of needing to provide as a new threshold test so as not to assess needs that are likely to be unmet or self-funded.

I can only hope that pending further judicial comment, local authorities will adopt a pragmatism borne of the Act and previous caselaw, and use assessments as a means to determine provision instead of using likelihood of provision as a means to determine whether to assess.

Allan Norman is a registered social worker and a solicitor at Celtic Knot.

The case of the nurses and the elderly man: does JE stand for judicial empathy?

The case in the Court of Appeal of two nurses dismissed for their role in the unlawful restraint of a patient with dementia seems an interesting case study in judicial empathy. Its citation is Crawford & Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 (17 February 2012), but I’m going to call it the case of JE. Although he’s not a party to the case, he is the person it’s all about, after all.

At the least, there was palpable sympathy from the court for the nurses. And very useful judicial commentary for any professional who faces routine suspension and isolation during a slow disciplinary investigation.

Try out empathy for the nurses yourself. Here’s the crude facts:

  • You are one of 2 nurses on night duty on an admission and assessment ward primarily for people with depression, anxiety or dementia;
  • On this particular night, one of the patients, JE “was 87 and suffered from dementia. On the day in question he had been agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention. It was noted that the safe handling technique used by the staff on the previous shift had caused skin tears on his arms to be opened. Medication had to be administered forcibly because he was refusing both food and medicine”;
  • You have a duty of care to all the patents, and are aware that on the previous day, JE required 2:1 attention, with the effect that “the other patients had only their basic needs attended to”;
  • You constrain JE by tying his chair to the table with a sheet. Exactly how, and whether it involved tying JE himself, is unclear;
  • In consequence you are suspended, and forbidden all contact with colleagues;
  • The incident is reported to the Police;
  • Eventually, following a disciplinary, you are dismissed, and inevitably your regulator is aware of this.

So, do you feel hard done by? Really, your employer just hadn’t provided enough staff to manage the situation in accordance with best practice, and some sort of hack was going to be necessary. What you did – or possibly, what you failed to record or prevent – wasn’t noticeably worse than the injuries the day staff caused to JE’s arms, and the forcible administration of medication, both of which are also technically assaults. Inevitably, best practice care for him would have been to the detriment of all the other patients. And after an incident-free career, it feels over the top to face immediate suspension with no contact with colleagues. Is it really right that you whole career should be at risk?

The Court of Appeal got all of this, and went out of their way – really, bending over backwards – to criticize the nurses treatment.

First, the footnote

The footnote is frankly the best bit of the judgement. A shame it is what lawyers would term an obiter dictum – unnecessary to the decision, therefore not binding on anyone else. The judges noted what in my experience of such cases is true, that this immediate suspension with no contact is common practice, but, they said, it is not good employment practice:

“It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so… I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk.” [paragraph 71]

The footnote is even more scathing about the referral to the Police:

“I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct.” [paragraph 73]

This approach to criminality is fascinating. There was an assault. And in my assessment it is hardly beyond the bounds of probability there was a crime. But the judges do not say there was no crime. They apply a different test, whether the conduct justifies the epithet ‘criminal’ being applied to it. One gets the impression the court is mindful that the criminal law is there to sanction the most egrerious breaches of society’s minimum standards, and feels that regulated professionals who fall short of best practice standards are properly dealt with in a different arena than the criminal courts. Moreover, employers of professionals should be making the judgement about the appropriate arena for themselves.

Second, the speculation

Yes, I’ve gone for alliteration.

The court imagines for itself how the nurses must feel:

“They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging… It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it.”

The court also speculates on the long term consequences:

“Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them.”

Third, the theorising

The third way the court bent over backwards was in its reasoning to its conclusion. The structure of employment law in the area of unfair dismissal is unhelpful to us professionals, in that the appeal process does not consider whether the decision could or should have been different, only whether it was within the range of reasonable responses based on honestly held reasonable belief – see paragraph 25.

Given how low the threshold for what the employer needed to show, it required quite tortuous reasoning for the Court of Appeal to swap the outcome again and declare the dismissal unfair. But the court managed it.

But what about JE?

However useful the judicial comment on the treatment of professionals by employers – and I truly welcome its comments, as the standard ‘act first, reflect later’ practice of risk-averse employers can treat professionals quite abominably – the elephant in the room so far as judicial empathy is concerned is the patient concerned, JE.

I see no evidence that the court tried to put itself into JE’s situation. It observed that the medics were

“sanguine about it. It appeared to cause them little concern; [the Ward Manager] noted that they were not “shocked, angry or even mildly emotional about the allegation”. She felt that they were not treating the incident seriously enough.” [paragraph 7]

The court, frankly, seems equally sanguine.

“…technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed…” [paragraph 73]

But I find it hard to be so sanguine. JE was male, aggressive, 87 and suffering with dementia, but a human being nonetheless. None of these characteristics could, of themselves, have provided the justification for his treatment. And I really do wonder whether the reaction would have been the same had he been a passive young woman with a physical disability, rather than an aggressive old man with dementia?

JE maybe does not stand for judicial empathy after all?

Allan Norman is a registered social worker and a solicitor at Celtic Knot.

Religion, secularism and the state: in defence of the middle ground!

The proximity of two recent judgements apparently challenging the right of Christians to practise their faith has led to much media interest including the headline ‘Christianity on the Rack’. One of the two concerned public prayers at council meetings.

Responses have included ‘a plague on both your houses’ from those who dislike the fervour of the National Secular Society as much as that of the Christian Institute; an attack on ‘militant secularism’; and a narrow analysis that the scope of the judgements was not the broad brush attack on faith that it seems.

Now, I approach these rulings as a lawyer who believes in human rights; but from that perspective the growth of a secular society is neither inevitable, nor even a preferred direction of travel.

My unusual, but hardly unique starting point, is that Christianity itself lost its way, somewhat, when it was appropriated as a state religion under Constantine; and that requiring it to sink or swim without state support in competition with every other faith or belief, is fine. I’ve no truck, then, with the ‘Christian country, Christian heritage’ kinds of arguments. If someone is intolerant enough to insist on asking a judge the question, I have no quibble with the answer the judge gave.

However, there are two dangers that appear to have been widely missed. Both emerge from the debate about the boundary between public and private life.

The first danger is the growing perception that the manifestation of faith should be a matter for private and not public life. That is not our human right. After all, the scope of Article 9 could hardly be clearer:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom…  either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

Our liberal right is to manifest faith, “alone or in community… in public or in private“. It may well be that faith should not be state-sponsored. But it should be allowed to be a part of public life, not a purely personal, still less a secret activity.

The second danger, again accepting that faith should not be state-sponsored, is that if we are to secularise state-sponsored public life, we need a clear understanding of the boundary between public and private life; and we need enough of life to be on the private side of that boundary for faith to be able to thrive.

Three growth areas in state activity concern me in this regard: regulation, privatisation, and criminalisation. As a social worker, I draw my examples from social work, surely the epitome of the interface between state-sponsored public life and private life.

Regulation

By regulation, I refer to the State’s involvement in setting and enforcing standards. Checking that restaurants are clean seems innocuous enough. Requiring us to register if we look after each other’s children is more problematic. Oh, I understand the pubic interest in the welfare of children readily enough, the problematic is the boundary between public and private spheres of activity. Something that was once a purely private activity becomes the State’s concern.

Consider this for a moment. The threshold for compulsory intervention in family life is significant harm; a threshold that serves as a reminder that in the absence of significant harm the State may seek to persuade, but cannot coerce it’s views on how to bring up a child. But if I want to bring up someone else’s child, I need the State’s approval. Despite the fact that we know children would be better off in families than in corporate care, we check those new families not against the ‘significant harm’ threshold but against the State’s best practice standards. Further developments mean we are under pressure to treat kinship and non-kinship arrangements comparably. Again, I understand the whys and wherefores, just observe that kinship care, surely once the epitome of the private sphere, has become the State’s concern.

Paragraph 5.8 of the GSCC’s Code of Practice – a standard enforceable against social workers under the Care Standards Act, and one frequently cited in misconduct cases, provides a further example. An Act of Parliament makes provision for a Code which in turn allows an organ of the State to monitor and censure the private lives of social workers.

As Ken McLaughlin explains (British Journal of Social Work [2010] volume 40(1) pp311-327),

“There is certainly a similarity to religion in the way that the GSCC has taken to censuring our sex, drink and drug habits… In some respects, it could be argued that the GSCC is replacing the priest or imam as the contemporary arbiter of morally ‘correct’ behaviour.”

Privatisation

Now, why should privatisation represent an expansion of the State’s area of influence, rather than a contraction? The answer is that what it represents is a blurring of the State’s sphere of influence. Certain activities, health or social care, for example, were once clearly in the public domain, or clearly in the private domain. But when the private domain contracts with the public domain, and the same commercial providers supply both, the boundaries are blurred.

Nowhere is this better illustrated than by the fallout from the House of Lords’ decision in YL v Birmingham City Council & Ors [2007] UKHL 27 (20 June 2007). An 83 year old woman with dementia was unable to assert her human rights against her care provider because she was placed in a privatised care setting, the provider being held not to be performing a ‘public function’. In the fallout from that decision, there has been a call to expand the definition of ‘public function’ to cover privatised services.

There should surely be nothing objectionable in that, if I believe, as I do, in human rights? Well, it does seem to me that YL’s human rights ought to have arisen because of her humanity, not because of some technical ruling about the scope of the State. And if we are to expand the scope of what is a ‘public function’ it does seem we are going to need to tread with care lest we also believe that means ‘secular’.

Criminalisation

Two characteristics of the criminal law may be said to be that it represents society’s minimum standards of behaviour, and that it is the State that polices them. So a surge in new criminal offences (approximately one new offence a day under the previous administration) also corresponds with a growth in the scope of activity that the State polices.


Now, to be fair, there has been public support, media support, democratic support, for the growth of the state. Indeed, it seems that nothing can go wrong in the private sphere without a clamour going up for the state to intervene. But the State needs to resist. To know its place. To behave in a way that does not tyrannise the minority. To respect human rights.

Both religion and the State have been capable of great harm in history, most frequently when they have been intertwined. A secular state is no less capable than a religious one of excesses, intolerance, even atrocity. But both religion and the State also have the potential for great good; and I would rather see them operating as checks and balances on each other, than either one surging forward to overwhelm the other.

Allan Norman is a registered social worker and a solicitor at Celtic Knot.

The blight of enhanced CRBs returns

The case of T, R (on the application of) v Greater Manchester Police & Anor [2012] EWHC 147 (Admin) (09 February 2012) concerns a student who had single entry on his otherwise unblemished enhanced CRB: at age 11 he received a police warning for bicycle theft.

Problems with enhanced CRBs are a recurrent theme among issues I am asked to advise on. The bottom line is that they have always been difficult to challenge, but a 2009 court ruling (see my blog post at the time) did seem to offer some hope of a remedy. The main problem with that remedy is that so far as I can see, the police have largely concluded it doesn’t affect them. Therefore, they do not routinely offer a right of reply before doing the damage.

Enhanced CRBs offer real potential for real injustice. Here is why: they include information, the accuracy of which has never been tested, and never will be tested. Just imagine (if you have to imagine – this has happened to real people I know!) that you are arrested upon suspicion of an offence. The police, after investigation, for any number of reasons decide not to prosecute. They can and do still include the information on enhanced CRBs. It may well relate to a very serious crime. Indeed, it is more likely to be included if the crime is more serious, as the test for inclusion is effectively its potential relevance to the purpose for which the enhanced CRB is sought.

So the enhanced CRB alludes to your having been under suspicion of a very serious offence, of which you may be entirely innocent. Guess what? It can stop your career in its tracks. And since you are innocent, you will want vindication. But you can’t get it, because there is no forum in which to get vindication. The reality is, that you are worse off than if you had been prosecuted and stood trial.

The truth is, attacking the content may not be the best line of attack, because of the legal difficulty doing so. There are at least two other remedies to consider:

  • the decision to go for enhanced instead of standard CRB in the first place. The circumstances in which they are permitted are strictly prescribed, but this is frequently overlooked in a risk-averse age which says “belt and braces is best”;
  • the use that is made of the enhanced CRB by the organisation to whom it is directed. The police line is usually that it is for the recipient to test the information, not the police, but rarely is this done.

Back to the case of T. In his case, it was a warning that was included. Untested; but unlike the situation described above, at least the warning was accepted at the time. In my experience, that may not be equivalent to an admission of guilt. It may follow legal advice that it would be pragmatic to accept a warning rather than the hassle of a trial – advice that is unlikely to have borne in mind the hassle caused to your study a decade later.

But even assuming there was an admission of guilt, T’s case was that bringing up his childhood misdemeanours so much later infringed his human rights. The court was sympathetic, but bound by precedent. The real alert, I think, needs to be that the Rehabilitation of Offenders Act is plainly powerless to prevent the blight of enhanced CRBs upon the rehabilitation of offenders.

Allan Norman is a registered social worker and a solicitor at Celtic Knot.

Bye Bye Bower

Yesterday Cynthia Bower resigned at the Chief Executive of the Care Quality Commission. I remain amazed that she was ever seen as competent to run it in the first place but it’s easy to be wise in hindsight. Her departure is no surprise as the organisation has consistently been shown to be ineffective and unable to effectively or safely keep within its remit as the regulator of health and adult social care services in England.

As the Guardian states, at the time of Bower’s appointment by the Labour Government

Andrew Lansley, the then shadow health secretary, said at the time: “We have to ask whether it is right that the person in charge of the West Midlands strategic health authority at the time, Cynthia Bower, is now to be put in charge of the national regulator which heads up these investigations and which will be responsible for ensuring that this never happens again in Mid Staffordshire or elsewhere.”

Lucy at The Small Places refers to some of the closing statements at the Mid Staffordshire Inquiry which shine a light on the actions in the CQC at the time. She quotes Dame Barbara Young’s evidence – who had resigned as CEO of the CQC and was asked why – saying

I really believed strongly that we could only do a good job if we were on the ground locally inspecting with rigour and understanding what was happening locally in health core systems and in hospitals that were delivering services. And I knew that we were finding it quite difficult to ensure that that was the case with the resource we had. And I could see further restrictions in resources on the horizon, because by then it was clear that the service was going to share in cuts. And I could also see that that was going to happen at a time when the quality of care was going to be even more at risk than usual as a result of health core cuts in services.

So you’d be a regulator in a very difficult position, with government, accountable to government, but responsible really to the public, with less resource to regulate effectively, and services being more at risk And it just felt to me that that was not a job that my skills were best suited for.

Lucy, in her excellent post, points out, quite rightly that it was the Labour Government that was responsible for establishing the CQC in its current form. This goes beyond the party political. It is about creating a system which has allowed a more rigorous inspection regime to lapse faced with cost and faced with the potential to cause a political ‘stink’ when hospitals in particular might be found to be ‘failing’.

And where now for the CQC? Bower leaving was necessary but it looks as if the problems that run through the organisation are far more endemic than a change at the top. There needs to be trust restored in an organisation which is supposed to regulate services that we all depend on wholly.

My experience is more in the social care side than health and I see the dilution of regulation has happened over the years with poorer services, fewer inspections and inspectors with more experience in auditing paper records than inspecting care homes thoroughly ‘on the ground’.

Meanwhile, Paul Burstow calls for Dignity Codes for older people – who will be responsible for ensuring these ‘codes’ that apparently he wants care workers to sign up to are upheld? and his now cancelled so-called ‘excellence’ schemes which was unravelled and ratings sites – they all seem to be attempts to cover up the need for strong regulation and inspection because that would cost more money.

So Bower’s leaving is just an admission of failure and acceptance that she should never have been in that post to start with. She has barely displaying competence in ‘leadership’ but leadership is not just about one person and while the systems remain in place, we wait to be see if there will be any really useful changes in a regulatory body which has had such a difficult birthing experience.

What makes a good Best Interests Assessor?

Paperwork
Community Care carried an article a couple of days ago about Paul Burstow and the College of Social Work potentially turning their attention to the current training of Best Interests Assessors and finding the paucity of the system as it exists now to be in need of reform.

I’m a Best Interests Assessor as well as an AMHP (Approved Mental Health Professional). There’s a general awareness within the sector about what being an AMHP may be – there’s a lot less understanding about what is involved in being a Best Interests Assessor. The role itself is much newer having developed from the Deprivation of Liberty Safeguards which were a tacked onto the Mental Capacity Act (2005) by the Mental Health Act (1983) as amended 2007.

Lots of dates and lots of legislation but the role came into being in 2008 and created this role of ‘Best Interests Assessors’ who could be nurses, social workers, psychologists or occupational therapists with a couple of years experience who would be trained specifically to carry out particular assessments under these new legislative frameworks and make recommendations on the basis of these assessments as to whether someone who lacks capacity is being a) deprived of their liberty in a hospital or care home and b) whether it is in their best interests.

It can get enormously complicated but that’s perhaps, the reason that the focus has turned to the training of BIAs.

I was an ‘inaugural’ BIA, meaning that my training took place before the legislation had actually ‘gone live’. It took place over five days at postgraduate (masters) level training  delivered by a university and requiring an examined essay and presentation.

The problem is that we were then released into a ‘vacuum’ – there was an incredible feeling of insecurity about what these assessments required but there was also a hope that case law would eventually arrive to clarify! (oh, how deluded we all were!).

As it happens, case law is coming thick and fast now and each legislative decision adds layers of complexity. We have a better idea of the rate of referrals and the amount of time a good quality assessment takes so reappraising the course isn’t a bad idea.

Some AMHP courses now incorporate Best Interests Assessor training. I’m not sure I see this as necessary.

I’m not even sure more than five days is needed regarding an understanding of the legislation.

What is absolutely needed is constant and ongoing updates/training/discussions and forums to promote constant learning.

Currently there are no established and consistent  regulations concerning continuous professional development of BIAs – it is up to the local authorities to themselves decide. I’m fortunate that I have access to a host of BIA update training and a chance for specific supervision related to this role. I see it as fundamentally necessary, particularly at the rate with which the legislation framework changes, to be constantly in touch with the latest developments.

I also think that it is necessary for any new BIA (something that was impossible for me when I trained for obvious reasons) to have a similar experience as AMHPs have of ‘shadowing/fronting’ assessments with a more experienced BIA alongside them to get a feel for the type of work that i is.

This feels like a neglected corner of social work and social care in that it is a role that still is predominantly taken by social workers but few apart from those who actually do it, have an understanding of what it might entail.

We need to support each other on this – especially as so few of the trainers are actually Best Interests Assessors themselves – in my experience. This is an area where peer-led learning and understanding of the role could really move into the fore front.

I revert back to my premise that everyone working in social care with adults needs a better understanding of the Mental Capacity Act. That would form a better basis for those who do go on to become Best Interests Assessors.

I’ll be interested to see if Burstow picks this up. There’s a long way to go to improve both the Deprivation of Liberties Safeguards and the way that they are assessed and implemented. It’s quite right that the training and in particular professional development of BIAs is considered alongside this.

I’d be interested in what other BIAs thought about how training both initial and ongoing could be improved. Please feel free to leave comments!

Photo by anniebby