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You’re My Favourite Deputy

January 16, 2013

At last. I’ve received the paperwork from the Court of Protection informing me that I have been officially appointed as Steven’s property and affairs deputy. No sealed order yet and no damages award yet; they have to wait until I put up a surety in case I abscond to Barbados with the proceeds of Steven’s compensation. Will I be able to take him on holiday for his birthday in March? Will he eventually get his new bed by the spring? Who knows but for the first time since Justice Jackson’s ruling in June 2011, it feels like we’re moving in the right direction.

In the past couple of months, I’ve been on my soapbox in the blog posts “Straight From The Gut” about what I see as the flaws in the mental capacity assessment. In particular, I have questioned their almost sole reliance on cognitive decision-making and paying scant attention to the way that most people make their decisions by referring to their gut instinct, feelings or previous experience. And for people with communication difficulties, even if they are able to make a purely cognitive decision, they may struggle to communicate how they did it. I watched Steven the other day after I’d told him about a change to our routine next Friday. There was a lot of mental activity going on and from his response, I had correctly guessed that he was doing three things:

  • Absorbing the information I had given him.
  • Working out how the change would impact on him.
  • Deciding what alternative plan he’d like in place.

Basically, it was about me doing the weekly shop next Thursday evening instead of next Friday morning as I need to get up to London by 10am on the Friday. There were two aspects of this that would impact Steven: would he get his cheese on toast that we make together when I get back from Sainsburys and would he get to watch his Men Behaving Badly DVD that I cue up for him before I go shopping? It took  him about 10 minutes before he said: “Have cheese on toast for supper on Thursday night”, followed by, “Dad do Men Behaving Badly and then go on the train on Friday”. Brilliant, but if he had to explain how he’d reached these conclusions, he’d struggle.

Whilst reading through the CoP paperwork, it struck me that I may have had an un-necessary bee in my bonnet; certainly in terms of the mental capacity act. The guidance I’ve received about assessing decision-making capacity states that: “people have the right to make unwise decisions”; “people have the right to make wrong decisions”, and “consider any values, views, beliefs, wishes and feelings they may have expressed”. I was shocked on reading this as it hasn’t been my experience of Steven’s previous assessments. In 2010, social services had decided what the “right” decision was, about where Steven should live. The very matey referral letter (“How’s the family? We must meet up for lunch sometime”) from the social work manager to the assessing psychiatrist hardly opened the field for him considering anything other than the “right” decision. What chance did Steven have to present an alternative view under these conditions? Where was the consideration of Steven’s values, views, wishes and feelings?

So, perhaps the problem is not with the ACT as I’d thought but with the way in which it has been implemented by some of the professionals. Perhaps the Act offers the scope for the learning disabled that I’ve been calling for. Perhaps the problem is with the risk averse system, or the pig-headed “we know best” system. Remember the Cardiff case about the elderly lady who wanted to go on her annual cruise with her partner. The LA thought this was an unwise decision, too risky and subsequently slapped a deprivation of liberty order on her. A judge lifted the order and off she went. I never read any news reports of her falling overboard, so presumably the holiday went well. None of the stress or costly court hearing needed to happen if the code of practice had been applied fairly. I find it terrifying that I might, in the future, have my fundamental life decisions made by people who won’t allow me, out of risk or through an absolute certainty of their rightness, the grace of using my feelings, my instinct or my previous experience to choose how I live my life.

There are several references in the code of practice to appointing an IMCA when there are difficulties. And we all know how difficult it is to get an IMCA if the LA don’t want you to have one. If the decision maker believes their decision is the absolute right decision, they are not going to very open to having a second opinion. This is a massive challenge for people in the field and for people who come under the Act. Can you listen to; understand; and not discriminate against the learning disabled person when there are decisions about their life to be made.

One other thing that came out of reading about my responsibilities as a deputy is the code of practice confirms my thoughts about the conflict of interests in the decision I’m being forced to make over my housing benefit. Regular readers of this blog will know that Hillingdon want me to transfer my tenancy into Steven’s name and then he’ll have to meet the rental liability out of his damages. The code clearly identifies this as a conflict of interests and the solution is to either appoint an IMCA or take the matter to the Court of Protection. With Hillingdon, it feels like I’m in an interminable chess match, so I’ve written to them asking them to make an IMCA referral. And what will the court make of Hillingdon bringing about this conflict of interests? Should be interesting.

I had to sign a court form, confirming that I’d explained my deputy role to Steven. His reaction? – “Dad’s a deputy like Woody in Toy Story”. As much as I like Pixar’s cowboy, I’d prefer to be known as Steven’s property and affairs space ranger. After all, since I got on the wrong side of them, I see my battles with Hillingdon continuing to infinity and beyond.

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From → Social Care

2 Comments
  1. Helen permalink

    Your post about the focus on cognitive reasoning as opposed to gut feelings in decision making was really helpful to me. I’d been puzzling over how I was supposed to know someone could make decisions if they couldn’t demonstrate their reasoning clearly; but actually, there really is this sort of onus on people to explain their reasons (with support to communicate, but that’s not quite the same thing).

    Where the guidance says people’s feelings should be taken into account- isn’t that when making a best interests decision? So after it’s been decided the person doesn’t have capacity? I might be wrong.

    • Helen permalink

      I.e. so the person’s feelings should be taken into account at that point, but they’re not ultimately making the decision then. The ‘decision maker’ could still decide that the person’s feelings are outweighed by other factors. Whereas if some one is deemed to have capacity they can base their decision purely on emotion if they want.

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