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The Great DoLS Checkmate

May 18, 2017

Apologies. It’s another post about the Community DoLS experience. I suspect this one may run and run (possibly as long as The Mousetrap).

On Tuesday afternoon, Steven had his Mental Capacity Assessment. The big question at stake was: “Does Steven have the capacity to consent to his care arrangements?” In other words, does he agree to a support worker accompanying him to buy a strawberry milkshake?

Before the assessment, I had an interesting and moving chat with the two support workers who were to be present at the assessment. We agreed that Steven does have the capacity in this situation but what he doesn’t have is the language skills to demonstrate that he has capacity. He can demonstrate his capacity and consent through his actions and by his basic instructions but gets confused and anxious when he’s asked to explain it. This anomaly doesn’t figure on the radar of the assessor.

I was browsing Twitter after the chat and came across a tweet from Lucy Series. Lucy was commenting on a post from Alex Ruck Keene and observed: “Yes, mental capacity tests privilege the articulate. Unfortunately, it’s mostly the articulate who engage in debates about these laws…” 

Alex had written a paper entitled “Is mental capacity in the eye of the beholder?” and the paper included the killer line: “We need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation”.

This reminded me of an event I attended a couple of years ago. I had told the Get Steven Home story and was then asked me to meet a small group of Best Interest Assessors for an informal chat. I was shocked by how little supervision they receive in carrying out their vital and potentially emotional role. I compared the pittance they get in terms of supervision with how much I receive in my counselling role (2 hours per week). I love supervision – it can be very challenging but that’s the point. It’s vitally important that the professional reflects and examines their own values and belief systems and how they may be impacting on their professional role. It’s also uncomfortable but crucial to have a space where a colleague can say, “Hang about a minute. You’re missing something fundamental here”.

I digress. The assessment lasted less than five minutes. Steven had put on a Gladiators video just before the social worker arrived. He would have been happy discussing Cobra’s performance in Hang Tough but was not inclined to probe his capacity on other matters. For the time being, the matter rests there. I suspect they will decide that Steven lacks capacity. Not because he does but because it’ll make their job a lot easier. How many social workers have the time these days to get to know how Steven communicates and to fashion an assessment that reflects his communication style? With distrust of families so cemented in social care functioning, how can a social worker listen to the arguments that me and the support workers were making to support our theory that Steven has capacity, earlier that day? It ain’t gonna happen.

That was that, or so I thought. Then last night, Neil Allen tweeted the Court of Protection User Group Minutes (https://courtofprotectionhandbook.com/2017/05/17/cop-court-user-group-minutes/)

Neil made the observation: “Around 200 Re X cases have been stayed as a result of the deadlock between judiciary and government”.

Re X relates to the judgment handed down by Sir James Munby and addressed the issue of Community DoLS. His view was that P (the person subject to the deprivation of liberty) didn’t need to be a party to the court application. Don’t forget, that for every community DoLS a Local Authority carries out, they have to pay £400 to have the DoLS authorised by the court. An appeal was made and although Munby’s judgment wasn’t formally overruled, the three appeal judges cast enough doubt to throw the process into even more disarray. Their view was that to exclude P from the application wasn’t on.

This is the deadlock that Neil refers to. What has happened is that all these Community DoLS applications are ending up in a giant pending drawer somewhere in the Court of Protection.

What this means in practice was confirmed to me by Victoria Butler Cole. The applications are indefinitely frozen. The required court authorisation for the DOL is not in place. And there is probably no realistic prospect of the person challenging it. The LA submits their application and pays the fee and then the case is immediately stayed (frozen) because there is no-one to represent the person the case is about.

Get that folks. Nothing Happens. Sod all. Hours have been spent assessing and compiling the application. £400 has been paid to the court. And then Nothing. Probably forever.

The sheer waste in all this scrambles my brain. The anxiety this process generates for P and their family is massive. The intrusion into normal family life is huge. The framing of the process goes against everything that the person’s life is actually about.

The community DoLS process exemplifies everything that is wrong with social care.

And nobody gives a monkeys. The social care professionals will continue to complain about the extra work all this entails. The court will continue their standoff.

I could go on but I need to stop. I need to do Steven’s haircut so that he looks all shipshape and Bristol fashion when we deprive him of his liberty tomorrow and take him to see an Abba tribute band.

This is what being deprived of your liberty in your own home looks like:

abba tribute

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17 Comments
  1. I have a feeling, this is about job creation and restrictions, and not about complying with the MCA, which clearly states, as an overriding principle that all practical steps must be taken to enhance capacity, and this obviously includes all means used to communicate properly, and by those best able, this is also supported by the Code of Practice.

    But then as with all things to do with the MCA who appears to care about the law ??

    Also does this happen in residential care every time each person is accompanied ? Except maybe on a desktop DOLs tick.

    • It must be about job creation. The DoLS industry is huge now.

      • Yet more money taken from proper support in favour of a superfluous tick box industry.

    • weary mother permalink

      As I understand it, buried deep within this debate is a law that is aimed at helping people with a serious learning disability make reasoned choices ?

      Seems to me to have more than a a bit of a paradox built into it

      My son has serious speech difficulties and a learning disability. I attend meetings where in a rattle of ‘heavy hard’ (my son) words, of length and complexity, decisions are made on his capacity, his needs and his choices. He does not understand these ‘heavy hard ‘ words.. I have tried to explain this, and am seen as disruptive and or just holding up the process. I see his confusion..I ask, (say) ‘do you know what a contingency is’ (etc etc ), He always shakes his head. And I get a ‘who do think you are’ heavy hard stare from the room.

      Heavy hard words like ‘self determination’ and ‘enablement’ are implemented using isolation and barely nothing or nothing at all support,

      A chuck em in and prove .’they can swim’ , Policy.

      If no family to drag ’em out when gasping for air…blame the learning disabled person for drowning.

      If family gives son daughter a life belt, blame them and label them…. as ‘over weaning and of fostering dependence’…and of disrupting ‘the process’.

      Where DOLS and the law sits in all this…… I do not have a clue. ….

      • weary mother permalink

        cont
        ….Just watched the Victoria Derbyshire interviews on the BBC programmes this week, on the
        much obstructed, very belated investigation into the sexual abuse and exploitation of vulnerable children in Rotherham. Where, neglected (by the State) abused children were blamed for their years long abuse.

        We can only hope that one day, a similar investigation into the years of misery and damage, done, by Political and professional power, beliefs, attitudes and dogma towards.. children and adults with autism and learning disabilities and their families, will be met with similar National outrage…..


        ……and appropriate Laws and penalties will be applied to those who envision, permit and put into action this form of vile abuse.

      • Weary mother, MCA practice is carried out by too many cooks …, blind men and the elephant sort of people, or human error. MHA likewise.
        Luck shouldn’t be needed as much as it is, but the MCA just isn’t fool-proof or statutory even.

  2. Yes, it’s job creation for people who don’t have any real skills. Just talk, no real work. I’ve always felt that.
    And it’s not distrust of families, Mark, but resentment, as families don’t like nonsense. They just want to get on with life, but the ‘job-seekers’ don’t want that as their jobs rely on prolonging issues for as long as possible.

    • Yes, but these jobs have been created from the top by the executive. They are literally human forms replaceable by any briefly trained specific job operative.

      As appears the modus for all these ‘professionals’ and there are many feeding into the ‘disability’ industry,so plenty of money being spent Official Solicitor , psychaitrists, psychologists, person centred planners, development officers, occupational therapists, social workers, consultant nurses, financial assessors, Respect Officers, best interest assessors, RRP, IMCA ……………………………..

      And what purpose do they all serve ?

      Except an apparent tick box to lawfullness and deprivation of liberty , when liberty is being deprived and the system of bureaucratic nonsense has been deliberately created to make out that the MCA is compliant with HRA and indeed all this is compliant with the MCA..

      • It reminds me of the Borg collective (in Star Trek). All cogs in a machine.
        Except some of the cogs don’t like what they do, and try and push the machine in the right direction – what I’m saying is that some professionals are okay, though most just feed into the machine.

        It’s an industry – not like manufacturing, or even the hospitality industry (where people actually clean or cook), but a words industry.
        Words, the greatest invention of humans, used to abuse others, rarely to act kindly.
        In the UK work is often sitting around tables making decisions about others. It is tiring for some, though, because of the guilt.

        But what happened to ‘non-instructed’ advocacy, the ‘witness observer’ and ‘watching brief’ approach and such like – where people who can’t communicate with words were able to make choices and mental capacity wasn’t often tested, but other cues were observed, to give a person what they seemed to want – based on observation.

    • weary mother permalink

      I was training manager in mental health and learning disabilities in a large NHS hospital in the early 1990’s. I was employed to help shut their satellite hospitals for both patients, down.

      I used to spend some nights in the long stay words; observing and shadowing staff and learning about the patients. I saw some patients treated with wonderful gentleness, and too many others in the most cursory and even worse way.

      One man in his twenties, was a very long stay patient. He could not move barely a muscle. He was supposed blind and believed to be deaf. He had never in my presence uttered a sound that was intelligible, He was washed – flipped and turned as though he was a log.

      I offered to wash him one night with the help of a very kindly nurse. We put the radio on, were gentle, and used soap she/nurse brought in. that had a perfume. And we chatted to him. This young man relaxed his bent limbs a little,

      … and he smiled.

      There was no doubt that the young man was more ‘sentient; than most of these staff had assessed.

      I brought in an expert in the Mental Health Act, to a workshop for these (mainly male) staff.
      I told them this story above, Two of them were nudging and smirking at each other all the while I was speaking.

      This man had been assessed. His needs and capacity were decided…and he was a log.

      • Wow, weary mother, I’ve met people like you in the industry. That’s why I say all professionals are not bad people.
        That one smile tells us that man was a miracle (maybe he’s still living), but the staff were scavengers (of the worst kind). They couldn’t work in Tesco’s for a day, and in my mind they have some sort of brain disorder – the inhuman kind.

  3. simone aspis permalink

    haho wearymother – absolute – we very much hoped that the Christine Lenehan Review would have started this off with some very searching questions about Residential Special Schools and Colleges – we had to work very hard to try and get in our response to questions that were implicit to maintaining the status quo around the “junior” form of institutionalisation. I wonder what others think on this site on the role that special schools and colleges play into the feeding and fuelling of institutionalised care that everyone is talking about here. The “light tought” investigation into RSS and RSC arose from criterism raised about them in her first report on the institutionalisation and warehousing of disabled young people with learning difficulties and autism. It is absolute time that there is a public investigation into the abuse and neglect and institutionalisation of disabled people from cradle to death rather than somewhere in the middle!

    • There is little point in a ‘public’ investigation, if those investigating will be the establishment, as they are.

      If you research Public Investigations like Staffordshire, Baby P, they only serve to further the establishment plan/scandal they are investigating.

      Staffordshire- to privatise/dismantle the NHS to worse scandals, hidden behind ‘commercial confidentiality’.

      And Baby P a doubling of children in care and privatisation and hidden child protection services and worse outcomes.

      The mental disability industry has been deliberately created by successive government policies/laws, it is these that need changing by a new political consensus.

      • simone aspis permalink

        Totally agree finloma

      • shirley buckley permalink

        Again I agree too. Nothing changes it gets worse

    • I don’t think neglect starts from the cradle for everyone, or anywhere near as much as post-19 years or post-16 years. Not if you have a good family and a good school.

      I never thought about neglect pre-age 19, as I carefully controlled everything and sought services that I hoped would be at least as good as children’s services, but it’s a battle like nothing else I’ve known. Only third world torture compares to this, or kidnap.
      Just as parents never stop searching for a lost child, we never stop caring for a special child. In sickness and in health.

      Several years later, the shock is why is no one following good practice guidance? They said our children were special, with so many books were written about autism, so many qualifications, etc., but in the end it’s neglect that most people do best to other people’s children.
      What animals.
      We all have the right to protect our own. As nature intended, and our stress tells us. So let us be equal partners in care, even if we’re much more than equal. No man-made law is ever as good as nature’s law.

  4. Joan permalink

    Hope you and Steven enjoyed the show

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