This post discusses a case example from my practice, suitably anonymised, where the local authority and NHS Clinical Commissioning Group should be working together to support a hospital discharge for an incapacitated adult, but that, to date, hasn’t quite worked out.
Safety warning: I do work for the local authority here, so I’ll try to be as balanced as possible, but I don’t actually know what is going on over at the CCG, beyond what they say to us. Which, so far, hasn’t been a lot.
Let’s talk about F. F is a young man with complex issues relating to his mental health and autism. He requires a very specific environment tailored to his sensory needs. When not receiving the support he needs, F displays behaviour that puts him and those around him at significant risk. He has been in and out of hospital for a number of years, and various placements have been tried, but ultimately broken down. He is currently detained under s3 Mental Health Act 1983 at a local hospital. They have had to clear a whole ward for him to enable him to be supported alone, and staffing for any intervention is more than 2:1. 4:1 is needed for many personal care interventions, with more staffing needed should he manifest his frustration through physical resistance. Which he does. Quite often.
Now for context, the local hospital did not want to admit him. They don’t think the hospital environment is good for him. They want him out. ASAP.
A placement has been identified that could potentially meet his needs. In the interests of simplicity, I am not going to go into all of the reasons why the arrangements for that are concerning my commercial law colleagues.
But the social worker has concerns about this provider’s ability to cope with F. They have tried and failed with individuals less challenging than F recently. Ward staff are adamant he has to move as quickly as possible and the CCG don’t share the social worker’s concerns.
It is common ground that F lacks capacity to make decisions about his residence and care. The evidence is clear on that point, which leads us to best interests.
The CCG held a best interests meeting in September last year. The social worker couldn’t attend but raised her concerns in writing so they could be shared at the meeting. Which they were. And then, as far as the record shows, everyone else agreed that moving him to the identified placement really is the best option for F.
So what am I complaining about? That sounds like some decent joint working and a professional difference of opinion appropriately dealt with, right?
Except, F’s parents are actually very much against this move, but that has been largely glossed over, reduced to a sentence to the effect of ‘they would prefer he be closer to home’. Concern number 1.
Also, the best interests is written on the basis that he can’t stay in hospital because that’s bad for him, so this is the only available option. Which isn’t really a best interests decision, if only one option has been explored, and since the hospital are actually under a duty to treat him as long as he is eligible, to treat the hospital as an unavailable option is not exactly accurate. Concern number 2.
Also, whilst it is agreed that the hospital environment isn’t good for F, no evidence, at this point, has been presented to demonstrate that the proposed new placement will be any better for him. And if he’s going to be just as distressed and his behaviour just as challenging, isn’t he better off in an environment where there are more staff, with more specialist training, available to be called upon if needed? I’m just saying, as an outsider, this looked a lot like shuttling him on because the ward were fed up. And as I always say, doesn’t matter what you considered, it’s what you can evidence that you considered that is the issue. Concern number 3.
F is absolutely going to be deprived of his liberty when he moves. The acid test is going to be met, just as it is now. Whilst he is in hospital, that deprivation is authorised unsed s3, but not when he leaves hospital. Legal frameworks have not been considered. When questioned, the plan proposed by health was to discharge him under s17 leave, and I internalised a large scream of frustration. Concern number 4.
There are no support plans or transition plans prepared at the time of the best interests decision. Now call me pedantic, but I think it’s pretty poor practice to make a decision that a placement is in someone’s best interests without at least an outline of what that care will look like so the least restrictive principle can be applied. It shouldn’t be assumed that any placement outside of hospital is automatically less restrictive. What if he needs greater supervision and control outside of the hospital environment? If there isn’t the same ability to call on extra staff when needed, does that mean he’s going to have 4:1 staff all the time, just in case? His behaviour isn’t exactly predictable, after all. Concern number 5.
And here’s the final little question, that isn’t considered in the best interests assessment. Just a teeny tiny, lawyers ticking boxes type question: if F is this challenging, how are we getting him to a placement over an hour away by car? If he’s being restrained, physically or chemically, where’s the authorisation for that? Concern number 6.
Now to give the CCG their dues, these are mistakes that a lot of local authorities make too. Its just local authorities often have access to more specialists in practice (and usually a more specialised in-house legal team) who can usually correct these things before the errors are shown in the harsh light of day. And to be fair to ward staff, they are under immense pressure, and I understand why they want to discharge him as quickly as possible. But this whole situation threw up a bunch of red flags.
Cue me, getting involved and making a nuisance of myself. It’s what I do best.
So I asked me questions, and we agreed that a joint application to the Court of Protection is necessary to ensure that we have authorisation for restrictive measures needed in the transition, and to resolve or decide the dispute between parents and professionals. Because, you see, it is very bad form for a local authority to require the court to resolve a dispute between it and a CCG. We are partners after all. So, however much we disagree behind closed doors, neither organisation is likely to want to air its dirty laundry in public, as it were.
So, rightly, the powers that be asked me to play nice with the CCG, and I, of course, obliged.
9 months down the line, we’ve still not made much progress. And I, sort of, understand the reason for this when you think about the functions of the organisations involved.
The hospital staff don’t believe he should be with them, not because he isn’t eligible to be detained, but because they don’t see their environment as what he needs. But they’ve not been able to find a suitable hospital placement for him, so he remains on ward where he is, I am sure, disruptive to the services they provide.
Meanwhile, the CCG see it as their responsibility to commission a suitable package of care which, as far as they can see, they’ve done.
In a situation where s117 didn’t apply, social care wouldn’t be involved in this issue at all, because CHC would definitely be given. But we have joint arrangements in place. So the social worker is doing their best, but as far as the medical staff are concerned, this is beyond social care’s expertise. Which it is, most likely. But the social worker has had much more involvement with the Court of Protection than any of the other professionals involved which is why they’ve been trying to get the evidence together for an application to the Court, with mixed success.
But anyway, he’s moving in 3 weeks, apparently, and I’m holding the whole process up by being bureaucratic and not sending in the sparse best interests, care plan and transition plan they’ve given me.
And I have absolutely no idea if this move is in F’s best interests, but I’d very much like to find out…
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