Two days ago, I wrote a post calling for an end to the fannying around trying to change “organisational cultures” that believe it is okay for people to be moved hundreds of miles from their homes and then be trapped for years in assessment and treatment units. I guess my call was quite blunt – let’s just start applying the law and any commissioners who can’t get their heads around the law should face the consequences.
Whilst I was pondering where to take this idea next, the news broke that Bill Mumford has resigned as lead of the Winterbourne Joint Improvement Programme after a second safeguarding alert” was issued at one of his residential schools. I have been shocked by the online reaction, which seems to have been entirely focused on “what a shame it is to lose Bill” sort of thing. I’ve hardly read anything that expresses shock that another group of vulnerable people are yet again needing a safeguarding process instigated in an institutional establishment. Even more shocking, as Sara Ryan reported today, is that the mother of one of the residents only found out this news on Facebook – nobody from MAcIntyres had thought to inform parents. This is precisely why we need a new way. A way that cuts out all the self protecting crap and puts the people using the service first.
So, how can we do this? Well – perhaps we start with the law that already exists. I’ve decided that I’m not going to get into any more debates about the function/worthiness of assessment and treatment units. Having spent four years trying to find out what their purpose is and not getting an answer, I’ve come to the conclusion that they are either hiding something very big (and corrupt?) money wise or hiding something very dark and exposure is never going to happen. Getting into a debate over justifying their existence doesn’t stop increasing numbers of people being sent to them.
Here is a call out. Is it a charter? Is it a plea? Is it a pipe dream? I suggest we start with the fundamental principle that a learning disabled person should be living in their own home, whether that be with their family, on their own with support, in a small group home. It should be their choice. Anyone (especially the State) that thinks otherwise has to prove their case before a court. Too often, the State assumes it’s rightness, turns the person’s world upside down and then it is left to the family to prove the State was wrong in removing the person from their home. And this takes time, is very costly and causes untold damage in the meantime. Let’s turn that on it’s head and make the State go through the hoops, if they want an arrangement that is different from the basic principle. So, the given here is that the person lives in their own home of their own choice. If anyone thinks the person should not be living in their own home, they have to apply to a court. Not a multi disciplinary professionals’ meeting. Not a conference between a psychiatrist and a social worker. A decision taken by a court with the person at the heart of the matter being fully represented. If assessment or treatment is needed it can take place in the person’s own home rather than setting up a fake environment that has no bearing on how they person would normally chose to live.
Have we got any law to back us up on this simple principle? Well – we’ve got loads actually. Here’s four for starters:
1) Article Eight of the ECHR:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
2) Then we have the CRPD:
Article 19 – Living independently and being included in the community
States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.
3) For further leverage, we have the often quoted judgement of Munby J in Re:S
“I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in In re KD …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.
We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon ‘social engineering’. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult’s partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.
At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F; F v Lambeth London Borough Council  1 FLR 217, at para .”
4) And finally we have the MCA and its 5 core principles:
Principle 1: A presumption of capacity
Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
Principle 2: Individuals being supported to make their own decisions
A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
Principle 3: Unwise decisions
People have the right to make what others might regard as an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.
Principle 4: Best interests
If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests.
Principle 5: Less restrictive option
Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. In essence, any intervention should be proportional to the particular circumstances of the case.
If all people using services and their families/carers were aware of these. then they would be able to put up a much stronger fight when LAS/CCGs start making plans to move their sons and daughters away. I am prepared to be slaughtered for the naivety or simplicty of this idea. But I believe the time is now to change the power in something as fundemental of where the person lives.
From → Social Care