Exporting Care

Location, Location, Location

Yesterday I read this article in the Guardian. It reports that in Germany there is an increase in Germans being placed in residential, retirement and rehabilitation units in eastern Europe where the costs are lower.

As the article says

Germany’s chronic care crisis – the care industry suffers from lack of workers and soaring costs – has for years been mitigated by eastern Europeans migrating to Germany in growing numbers to care for the country’s elderly.

But the transfer of old people to eastern Europe is being seen as a new and desperate departure, indicating that even with imported, cheaper workers, the system is unworkable.

But before we are too quick to castigate Germany, I think it’s important that we look at what happens in this country.

Until one month ago, I was a local authority employed social worker, seconded into an NHS Trust (as I was a mental health social worker) working predominantly with older people. I made a lot of residential and nursing placements. I worked in an inner London borough.

The amount of local placements we had came nowhere near meeting the needs of the local community. Yes, there has been a push towards caring for people longer at home – perhaps it was a feature of central London, perhaps not,  but many of the people I worked with did not have family around them. The cost of housing had pretty much seen to that in terms of ripping communities apart.

Still, there are pockets of close communities even amid the high towers of the financial centres of London. Among the office blocks and fancy shopping streets, there are communities that have evolved over the decades, centuries even and those tourist spots visitors see, they are ‘home’ to many people who might not wear the smartest suits or have the fanciest accessories.

We ‘converted’ some of the residential provision locally into ‘extra care sheltered’ provision – see, that would be good, that would ‘keep people at home’ for longer.

So where are we now?

The chances of getting a placement in the local area are very slim to zero. We had waiting lists months long for some of the residential provisions in the area. The wonderful ‘extra care sheltered’ housing provision realised soon that they could not manage the needs of those who needed 24 hour residential support or maybe the criteria for residential care moved higher but they have not truly become an alternative for someone who needs a residential placement. They have become a safer environment with a constant ‘warden’ for those who may otherwise have had sheltered accommodation.

So there are fewer residential and nursing placements for people who are local to the area. If a family shouts and hollers enough they may get someone on the ‘waiting list’ for a place. Who knows when that place will come up. We don’t like saying it explicitly  but places in residential and nursing homes usually come up for one reason and that’s a death or a deterioration in physical health and noone wants to think about that.

What does a local authority do then?

It moves people out. It is more likely to move out people who have no family support and no ‘links’ to the area. You see, living somewhere for 70+ years isn’t seen as ‘link’ enough if your family and friends aren’t there. Anyway, even if they don’t want to move you out, if there are no beds, there are no beds.

So while we aren’t moving people to other countries, that’s only really by virtue of us being an island. We aren’t that much better than Germany in this respect. We are moving people to unfamiliar settings and localities on the basis of cost alone.

Commissioning Quality

How are these decisions made? Well, to absolve myself from responsibility, I’ll say it wasn’t my decision. I did and do rage against it. I raised it internally as the ways these decisions are made are purely on the basis of finances of local authorities to make placements.

Currently, in inner London we are placing frequently in outer London but soon it will be the Home Counties and further and further away from familiarity. I wonder how consistent this is with the Mental Capacity Act which demands previous preferences are taken into account. This can be ridden over roughshod if there aren’t any local placements at the right cost.

So we move to commissioning. There has been a race to the bottom in terms of providing services and placements at the lowest cost. Property is a massive cost in central London so cheaper land can push down general cost but at what price to autonomy and preference?

There has to be a way for commissioners to be accountable for the decisions they make. Families can push and make complaints on behalf of those who are not able to make decisions for themselves but there really needs to be, in my opinion, some external scrutiny of commissioning decisions made by people who really understand the social care sector. Yes, councillors can scrutinise but how many understand the needs of those who are not pounding on their doors making complaints about council services? Who understands that those who have the quietest voices or who have noone to advocate for them may be having their rights ripped away from them?

I’m not sure of the answers. All I know is that I wish the commissioners would have listened to their social workers. I wish there were a stronger, formal system of advocacy which would raise these issues with people who commission services and I wish there were an understanding in central government of the impact that geography makes on the cost of social care.

There may be cheaper and more available placements in South Yorkshire but that doesn’t mean the answer is placing Londoners there. I fear it may well be in the future.

We can’t become too complacent. Germany today may well be Britain tomorrow.

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… And they’re off! But it’s a disappointing start for the Mental Capacity Act

In the line-up for the 2007 legislation Grand National we see the return of some old favourites.  Waiting for the starters’ orders are the Mental Health Act alongside the NHS & Community Care Act. We also see the return of the Chronically Sick & Disabled Persons Act and … surely not … Yes it is, the National Assistance Act is back for another plod around the course, surely he should have retired by now.  We also welcome along one of the favourites this year, in his first year of entry, the Mental Capacity Act is confidently waiting for what must surely be a resounding victory for all those he represents.   They’re under starters’ orders, and they’re off …

… but it’s a rather lack-lustre performance from the Mental Capacity Act 2005 (MCA).  I’m probably not the only one slightly disappointed by the sluggish start; 5 years into the MCA I have to admit that things probably haven’t gone as some of us may have imagined.  I was prompted to write this blog having recalled a recent occasion concerning a gentleman with a learning disability. He asked his carers for support to obtain an application form for a driver’s license and then to complete the form. Instantly, the carers decided that it would be far too dangerous for the gentleman to be driving around and, quoting the MCA, in his ‘best interest’ decided that it would be better if they didn’t support the gentleman to obtain and complete a driver’s license application form. I think the only correct consideration of the MCA were the two words, ‘best interest’ and even they were out of context! On every level, they failed to apply the MCA correctly or even remotely well. If  they had, they would have approached the decision from the assumption that the gentleman had capacity (which, interestingly he did) and provided the support he was requesting in the first place.

This of course isn’t an isolated incident and only recently was also reported about on the Community Care website.  Poor application of the MCA is widespread, it crosses all levels of care professions and it has to be addressed for the sake of those it should be protecting. If I were the MCA, I would be suffering from a complex right about now. Being misrepresented, misquoted, ignored, it’s enough to make even the strongest legislation question themselves!

Some organisations see the importance of MCA training, but where I often see a glaring hole is in people’s ability to apply the principles and use the MCA as the framework it was intended to be. People can usually quote phrases, provide general themes or even list the 5 principles of the MCA but that is often where knowledge and application stop. Carers and professionals alike should be discussing it daily, in team meetings, formally in supervision and informally. They should be applying it to all decisions being made and actions being undertaken on behalf of someone who may lack capacity. They should be questioning everything and inquisitively discussing whether any action or decision being made is the least restrictive or whether a seemingly unimportant decision made by carers or professionals has just had a significant impact upon individual.

The MCA doesn’t have to be a complex piece of legislation unattainable to anyone who doesn’t have a law degree.  It even comes with a very user-friendly Code of Practice to which of course, anyone working with an individual who may lack capacity must have regard for.  But it does have to be a piece of legislation that is used well and frequently by all concerned to ensure that we really do act in peoples’ best interest.

Reporting on Deprivation of Liberty Safeguards

Skyline

If there’s one part of my work which is bound to cause confusion and misunderstanding, I’d say it’s the ‘Deprivation of Liberty Safeguards’ or DoLs as they are shortened to.

DoLs is a complicated corner of legislation that covers particularly those people who lack capacity to make decisions in relation to their care, accommodation and/or treatment (depending on the particular case) who are being ‘deprived of their liberty’ in a care or hospital setting. According to Article 5 of the European Convention of Human Rights, there is a residual ‘right to liberty’ so when someone is ‘deprived of their liberty’ (whether by being detained under the Mental Health Act or in prison) there has to be a legally prescribed process to appeal this and to ground the decision made. The ‘Bournewood Gap’ whereby there was no procedure to deprive people who lacked capacity to make decisions about residence/treatmetn/care was thus ‘closed’ by the introduction of these ‘Deprivation of Liberty Safeguards’ which provide a legal framework to authorise (and appeal, in legal terms at least) these orders.

To my knowledge, the majority of these orders particularly would be made in respect to people with learning disabilities or moderate to advanced dementia.

So yesterday the Department of Health reported produced it’s Third Annual Report (pdf) on data provided in respect to the amount of DoLs across England and the Independent published an article about the ‘huge spike’ in applications made – a jump by 27%.

There was some discussion last night on Twitter about whether this was ‘a good thing’ or not. The article rightly identifies the mess inherent in the current rather confusing and potentially inaccessible system, saying

DoLs are notorious among lawyers, care and health professionals for being overcomplicated and deeply misunderstood. Both the Care Quality Commission and the Mental Health Alliance have criticised the legislation with the latter describing the entire DoLS system as “not fit for purpose”

I’d join in with the criticism to an extent. The current system is overcomplex and the lack of a clear path through the system for service users and for family members is notorious and verging on oppressive. The routes of appeal particularly are unhelpful and challenging DoLs authorisations is a complex process. The other difficulty is that there is a lot of variance in definitions of what ‘deprivation of liberty’ means. This is something that courts reinterpret frequently however thinking back to the safeguards as exactly that – safeguards – mean that by the context of them narrowing we are at risk of providing these safeguards to fewer people.

However regardless of the complexity of the system, these ‘safeguards’ are not bad in themselves. They provide an extra layer of scrutiny into some of the care and treatment of those who lack capacity and can be a potentially very strong safeguard.

The problem is, well, one of them anyway, is that the care home or hospital where the deprivation of liberty is or may be taking place have to make the referral themselves.

Back to the Independent article, it explains that one of the problems is the massive discrepancies nationally and I would concur with this. This is what happens when ‘deprivation of liberty’ is poorly defined.

So

A breakdown of the figures show that whilst a local authority like Leicester made more than 400 applications last year, Reading only made one for the whole year whilst Hull made just three.

This seemed staggering to me. I am astonished/sceptical. Is it really possible that there has only been one person who is in Reading (or for whom Reading is responsible in terms of financing their placement) who was deprived of their liberty in a case or hospital setting over the course of an entire year?

Reading’s response is interesting in itself

A spokesman for Reading Borough Council gave no reason for why they had only authorised one DoLS last year but added: “We advise and support care homes to support vulnerable people, and only use DoLs as a last resort measure.

Well yes, but this more shows a lack of training and advise regarding legislation rather than something that Reading should be proud of. Because to me, it screams that there are potentially a lot of ‘unauthorised detentions’ knocking around.

The problem is that noone is likely to pick up on this.

The Deprivation of Liberty Safeguards are not ‘bad’ per se. They are safeguards and when they kick in, they require two independent assessors to provide a report explaining the terms of the deprivation as it exists, a limit to it and the reasons why it is in that persons’ best interest.

How could they be made better? (and do bear in mind, I’m venturing a little into ‘fantasy land’ here).

  • Streamlining the appeals process so that it is on a par with rights to appeal to tribunals under the Mental Health Act
  • Provide a mechanism to trigger referral that does not depend on the care home/hospital
  • Better define what Deprivation of Liberty is
  • Provide a regulation framework whereby regulators and inspectors are actually aware of ‘deprivation of liberty safeguards’ and the relevant legislation

Will that happen? Unlikely because there is little resourcing available but however much the phrase might make one shudder with confusion, the Deprivation of Liberty Safeguards are important.

They protect the rights of those who have little recourse and for whom some of the most important decisions are made by staff in hospitals and care homes and by local authorities. These need to be scrutinised and considered but the complexity of the system has been its undoing.

The presence of a DoLs authorisation in a care home is not a ‘bad’ sign. The absence of any (or few) DoLs authorisations in an entire local authority is not a ‘good’ sign.

Poorly administered or misunderstood DoLs’ authorisations are very bad though however used properly, it is very important to remember they are safeguards.

Reading’s pride at the existence of one authorisation over a year is not really something for them to be enormously proud of because I worry about the existence of unauthorised deprivations of liberty – not just in Reading (where obviously they advise and support care homes so well) but in all the care homes and hospitals in the country where those for whom Reading may be responsible are living.

Sometimes it isn’t as simple as saying ‘rising authorisations’ are bad or that they are ‘good. It’s about the subtlety of implementation and review.

Most worrying is the variation. If anything points to complex law and poor information sharing – it is that.

Something to learn for local authorities around the country, I hope.

And hopefully a lot more work for those who train people to understand and use the deprivation of liberty safeguards properly!

pic by garryknight Flickr