I have written before about the difficulties I have encountered in practice in relation to individuals who do not co-operate with those trying to provide care and support. It’s causing particular issues with one of my cases this week, so I thought I would share.
UP has a diagnosis of Emotionally Unstable Personality Disorder and has been known to services for a number of years. They have previously been detained under s3 Mental Health Act 1983 and is eligible for aftercare under s117. That is a joint duty, shared between the local authority and the NHS clinical commissioning group.
Unlike the previous UP I wrote about, this individual is not abusive to carers, they pose very little risk to those around them. But they pose a significant risk to themselves. I won’t go into the detail in the interests of not unwittingly identifying the UP in question. Let’s just say they are my new record holder for self-harm, and their behaviour is such that they have disabled themselves to the point they need support with a number of activities of daily living.
They are more than happy to engage with that support, which is targeted domiciliary support whilst they reside at home. But when left unsupervised, self-harm often occurs. The domiciliary support is provided under s117, the local authority having taken the view that this is still related to her mental disorder. It’s not clear cut, but it’s an arguable position and that’s the status quo at present.
What they do not engage with, is any type of support targeted at improving their mental health and creating strategies to prevent self-harm. That’s a no go for them . And local NHS services have taken the view that if they won’t engage, then there is nothing they can do.
And I somewhat sympathise, because there may be very little that can be done. There is certainly very little in the way of ‘treatment’ available to UP. And that is justification for not detaining someone, there being a need for treatment to be ‘available’ when making an admission under s3. But does that mean the end of this?
Probably not (but if you are reading this, you probably already knew that).
You see the Mental Health Act 1983 does not contain all of the duties the NHS is under in relation to mental health patients. And let’s not forget, there is a continued duty to meet aftercare needs under s117.
Of course, there is no obligation or power outside of the MHA frameworks requiring services to be delivered if an individual refuses them. But its necessary to consider whether this is, indeed, a refusal of services, and whether that means duties are discharged.
I don’t want to repeat myself too much, if you have already read my earlier post on a similar issue. But one thing I didn’t specifically mention last time is the Equality Act 2010. That Act places public authorities under a duty to make reasonable adjustments for someone with a disability. This can potentially come into play in this scenario, because if UP is disengaging as a symptom of her diagnosis, then those working with her are under a duty to make reasonable adjustments to support her to be able to engage.
What is reasonable depends on individual circumstances, but it can certainly extend to a change in approach as an attempt to engage UP in support. So it’s a question that can rightly be asked of local NHS services and/or local authorities. That’s my handy tip for navigating this particular minefield.
The adjustments needed might not be reasonable, or the reasonable adjustments might not result in any meaningful engagement. But records of these attempts will help to justify any action, or inaction.
As for the rest of this minefield, I’m back to my parrot act: “we have to establish their capacity to make these decisions” I repeat on loop. At this point I could do with a recording I can play to save my voice and stop me angry typing the same words.
I really do sympathise with practitioners faced with these issues in both health and social care. Because it is very easy for me to sit over here and harp on about frameworks and distance myself from the problem. That is true. But that is what you have lawyers for, to advise you on the frameworks so a satisfactory outcome can be reached.
I am certainly not invested in any particular outcome. I’d not like this individual to come to more serious harm and will advise accordingly, but I also believe that unjust interference by public services is a harm too. And it may be that there is nothing that can be done to support this individual because the measures needed to keep them safe will be disproportionality restrictive and distressing.
But we don’t know that yet, for this UP. No one has asked that question.
And this is where practitioners lose my sympathy. If, when reminded of the frameworks and the reasons they exist, they dismiss the significance of those frameworks, I start to get peeved.
This particular UP has established disordered thinking, it is widely agreed they are compelled to harm themselves and they have openly stated they will keep doing it, even knowing that it could kill them. There is certainly ‘reason to believe’ they may lack capacity, and that warrants further assessment.
The kicker, for me, was that UP became so unwell that they were readmitted to hospital under s2 Mental Health Act 1983. For some of us, this seemed like an excellent opportunity to conduct a thorough capacity assessment and get the multi-disciplinary team together to take stock and reconsider the approach.
For others, this was an inconvenience to be removed as quickly as possible.
They were discharged after less than a week. When asked about capacity assessment in relation to care and support, the response of one particularly enfuriating member of the team, who just so happens to work for the NHS responded, with “that’s not really important now, is it? Let’s just focus on discharge planning”
But how can you discharge plan without knowing their capacity to make decisions about said plan? After all, if they have capacity, consent is needed. If it isn’t, decisions must be made following the best interests principles. For me, that is so crucial to care planning that the idea that this would come after discharge planning is very disheartening.
I’ve seen that attitude with health and social care staff, so this is, by no means, a dig at any particular category of professional.
It really concerns me on this case though. Because without a course correct, this individual is very likely to die. Its being categorised as a risk of ‘death by misadventure’ rather than suicide, but it’s still a death. And chances are, there will be an investigation and a lot of people will talk of lessons to be learned and improvements to be made.
But personally, I’d rather those improvements were made before the death occurs, especially when the issues are so clear.
In this case, the outcome may not be any different if capacity is assessed thoroughly. I’ll sleep better knowing we did everything we could, though.
Anyway, this one is on my desk now. And the part of my brain that allows problems to go unsolved is chronically under developed.
So it looks like an application to the Court of Protection is on the cards, to seek a determination of UP’s capacity to make decisions about their mental health support and care.