When everything hinges on a capacity assessment

I want to talk to you today about an issue that I am coming up against more and more at the moment in my day to day practice. Let’s refer to it as the ‘unco-operative patient’ issue. I am finding this to be a particular issue in personality disorder cases, where mental illness and personality are intrinsically linked.

So we have our ‘unco-operative patient’, UP if you will. UP is known to social care services and mental health services, and has bounced in and out of support for a while. UP is at significant risk of self neglect and self harm, (s)he doesn’t pay rent or bills and is abusive to carers in the community sent to support them with personal care. But then when something goes wrong they overdose on paracetamol, or cut themselves and present to A&E. “I need help!” they cry, to anyone who will listen, “why won’t any of you help me?!”

So a multidisciplinary meeting is called. Social care say that they have tried to put in a package of support, numerous times, but UP is always so abusive that the providers terminate the contract, and now no provider in the area will work with them. Housing calmly state that they don’t owe UP a duty because of their rent arrears and behaviour. They’re making themselves intentionally homeless, so the housing department won’t offer them anything.

Now whether UP is, in fact, intentionally homeless does, to a large extent depend on his/her capacity to make decisions about residence and care. Because if they don’t understand the rules placed upon them by the tenancy, or have an executive functioning issue meaning that when heightened they cannot abide by the rules that they understand the rest of the time, then there is a real question about whether UP is doing anything intentionally.

Here’s the kicker though, because if UP lacks capacity to understand a tenancy agreement, then housing still aren’t under a duty to offer accommodation. Rock meets hard place.

Now there will be some people who have capacity to accept offered housing, but didn’t understand enough to have made themselves intentionally homeless, capacity is time and decision specific after all, but that will require some in depth assessment and recording to prove. And, in my experience, no small amount of pressure being put on the housing decision-makers.

But let’s assume that it is accepted that housing duties don’t apply. UP still needs a roof of his/her head. Needs assessment identifies eligible needs under the Care Act 2014 so social care look at accommodation options. But none of the supported living or residential placements in the area will accept UP because of their behaviour. A specialist placement is needed, that will be able to adopt strategies enabling co-operation from UP and reduce their self harming behaviours.

Now that means some specialist medical input is needed. Except local NHS services have discharged UP because they weren’t engaging in support, so they won’t advise on strategies or recommend any specialist placement. They’ve discharged their duty, this is a social care problem as far as they are concerned.

From a legal perspective, ignoring, for now, the practical issues, the starting point is UP’s capacity to make decisions about residence, care and treatment. If UP has this capacity, understands the consequences of their actions and would very much like to carry on doing what they are doing then there isn’t much that can be done. So the NHS’ attitude is a bit contradictory, because if they’re duties are discharged, what makes them thing social care have a continuing duty if they don’t?

Of course, UP needs to be told what support is available and given the options. A placement is available if UP will follow the rules, but if UP breaks the rules, then it is very unlikely that there will be further support available. There is some limited case law to support the principle that failure to comply with reasonable conditions of support can be treated as a refusal of support. So clear record-keeping is needed and some detailed discussion with UP will have to take place. But ultimately if UP refuses to engage, then they may have to live with the unpleasant consequences of those decisions.

Here’s where it gets tricky though. Because the consequences are significant. UP might become street homeless, they might not get the medication they need, they’ll keep hurting themselves to get admitted to A&E and one day the ambulance might not get there in time.

None of the care team want that to happen. They’ve all gone into this line of work because they want to help people. But agreement can’t be reached about what should be done because there’s a circular argument going on: support only works if UP engages -> UP isn’t engaging so they’re going to be discharged -> if they’re not getting support they’re at risk of harm -> support isn’t working because they won’t engage. And round and round and round it goes.

And capacity gets lost is the mix.

But capacity is crucial, because if UP does have capacity, then there is no power to require them to do anything they don’t want to do (assuming no compulsory mental health act powers are in play). Techniques and strategies to enable them to engage, based on them as an individual might help. But they have to be empowered to make a decision and to accept and understand the consequences. And sometimes I do wonder if UP having to accept the consequences for a short while might make them more engaging in the future. But I am not an expert in such things.

And it isn’t a walking away and washing of hands scenario. The door to accessing support should remain open to them, should they change their mind and want to engage with support in the future.

I completely appreciate why, practically and politically, this isn’t an attractive option. But it might be the only option left to services.

On the other hand, if UP lacks capacity to make decisions about residence, care and treatment then discharging them puts services at a real risk of being in breach of their duties to UP. Because if UP lacks capacity to make the relevant decisions, they shouldn’t be treated as disengaging. Their behaviour is then not a decision they are making but a sign that the strategies being used aren’t working.

And if they end up street homeless or coming to serious harm, services can’t say “we did everything we could”. This becomes a “what the flip went wrong?!” scenario instead.

And that is a question that will be levelled at all services that have been involved with UP. So it is no good health services discharging UP and leaving social services to deal with it, or vice versa. Because the whole multi disciplinary team will have let UP down and should take a fair share of the criticism.

An incapacitated individual should not ever be left without services just because they haven’t engaged. There may be some individuals for whom arms length support will be in their best interests, notwithstanding their incapacity, because the alternative will be so restrictive and so upsetting for them. But you’d expect a very detailed best interests assessment before reaching that conclusion, and quite probably an application to the Court of Protection.

So it is incredibly frustrating to get caught up in a bout of buck-passing in cases like this, because it doesn’t help anyone. And the interests of UP and services are best met by answering this capacity question early and in detail, so that the result of the assessment can guide the actions taken by all services with a joined up approach.

And that might mean joint instruction of an expert, or some thorough multi-disciplinary discussions. It might mean an application to the Court of Protection to resolve a disagreement about UP’s capacity. But whatever it requires, it seems much less likely to result in organisations heading off down the wrong path, exposing themselves and UP to unnecessary risks.

I worry, sometimes, how many vulnerable people have been written off as ‘just difficult’ without exploration of their behaviour and the reasons for it. I get how it happens, in a system relying on over stretched professionals, but I also wonder if asking the right questions at the right time might result in less of a strain on those same professionals, and a better outcome for UP in the long run?

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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