…and other solutions that seem like common sense, but can actually create complex issues.
I get these a lot, when a practitioner is doing a routine call and and a family member mentions something they are doing to support their family member. It seems perfectly sensible to them, but it raises a red flag in the practitioner’s brain. They ring me to tell me about it and I wince as a whole host of complications begin to run through my brain and the practitioner then winces too, thinking about the follow up conversations they are going to have to have. These situations generally occur when the person themselves doesn’t have capacity to consent to the measures their family have taken to protect them. If course, the person does consent, most of the issues discussed below won’t arise. But also the effectiveness of many measures will be reduced since the person can withdraw their consent to a door being locked, and if they do, that door needs to be unlocked sharpish!
And when I talk about consent, I mean true consent by someone who is able to understand and accept the risks of their decision. Acquiescence is never consent.
Locking a door is definitely the most common example of this. But I’ve also had it with stair gates and remote monitoring equipment like baby monitors. These sound like sensible solutions to issues that can occur at home with vulnerable people who present risks to themselves if they wander, or access certain parts of their home alone. But it is rarely that simple.
Take, for example, the issue of locking a door (usually the front door). It stops the individual leaving the house where they might get lost, or stray into a road, or fall and injure themselves. But what about the risks it creates? Fire risk is a big one. What happens if there is a fire? The person can’t get out, and if there is no one nearby to help them. Well, it’s not going to end happily.
And as a family member, you might think that is a risk that is worth taking. But a social care or health care professional doesn’t have that luxury. They’re the ones who’ll face a negligence allegation if that person does die in a house fire and they knew about the risk but took no action. So at the very least, they are going to have to investigate and make sure due process has been followed.
Fire risks can sometimes be mitigated against, by neighbours having access to keys, remote alerts and reducing the risks that a fire may start in the first place. But that’s not the only risk.
Think about the risk of distress if that person wants to leave, but can’t. Imagine how scary that must be, trapped in the house when you are confused and don’t know why you can’t leave. That emotional impact can’t be downplayed. One person I worked with would ring the police claiming to have been kidnapped and sounding so distressed that safeguarding alerts were raised.
The person might also hurt themselves trying to leave, too. I’ve known people try to break windows to get out, or attempt to remove locks with knives or screwdrivers. Injuries have followed.
The same problems can arise regarding stair gates. Their presence can be distressing and confusing and injuries can occur trying to remove or climb over them.
Any type of monitoring device creates additional practical risks: how do you account for blind spots? Who is monitoring the device? What can they do to respond if a risk if one presents? If it is two-way, how will the person respond if they hear a voice, or even just an electronic noise, from a source they don’t understand. Unexplained blinking lights can be a trigger for distress for many people too.
There are legal issues too. Human rights is a minefield in these situations. And whilst individuals don’t have to worry about that, professionals do and they have a positive duty to intervene when they know, or ought to know that someone’s rights are being breached.
Now this doesn’t automatically mean that the person will need to move to a supported environment, if being at home is the right thing for them. But it means the proper process has to be followed: capacity assessments and best interests assessments need to be undertaken and clearly recorded.
If the arrangements as a whole amount to a deprivation of liberty applying the acid test, then an application to the Court of Protection is needed. It’s nothing to worry about, and there is no need for families to be scared of that process. But that process does need to be followed just in case an independent pair of eyes sees something that others have missed. I refer you to my piece on section 21A applications here as to why that is so important.
As to remote monitoring, a video in someone’s home is likely to capture personal and private moments that have a significant effect on a person’s dignity. That in and of itself requires serious consideration and can have implications for article 8 privacy rights as well as being an element of supervision and control that might tip the balance in application of the acid test.
With monitoring equipment there can be data protection issues too. If those videos are stored, or transmitted via the internet then that is data that needs to be properly protected. It shouldn’t be stored any longer than necessary, it should be shared only with those who need it, it should be protected from hacking or accidental sharing. All of this needs to be considered before decisions can be made.
So these seemingly simple solutions, end up being quite complicated.
Furthermore, given the way the Mental Capacity Act 2005 is worded, family members do not have an automatic right to make decisions on behalf of an incapacitated adult. And best interests has a specific legal meeting that does not mean ‘what I think best’, it requires detailed consideration of a number of factors.
That doesn’t mean family members are not involved in the process. Their views are one of the factors that need to be taken into account when making a decision, and their knowledge about the person’s wishes and values will be invaluable. They just aren’t always determinative, and social care practitioners are working in the context that there has been no recorded judgment that I am aware of where the court has approved someone being locked in their own home (although I am aware of one where the lady was able to leave her front door but not her garden and those arrangements were found not to meet the acid test).
They are also working in the context that they often see the worst of what people can do to each other. They have to approach situations objectively, and sometimes an element of cynicism can seep in too. So defensiveness on the part of a family member doesn’t help, and tends to make things worse, by creating suspicions that may well be unfounded by both parties. Not every family will be acting improperly. But those of us that have been in this field for a while know that some are, and that far more people than any of us would like to think start to see grandma’s money as their own once grandma gets sick, and let desire for a healthy inheritance colour their views on grandma’s care.
And professionals are expected to probe all situations to be sure they catch the ones where something is amiss. It doesn’t mean they think any family member is being cruel, however, they are just doing their jobs.
And what might seem simple to someone looking to apply ‘common sense’, professionals have to work within tight frameworks and a wider context that does exist for the benefit of us all, even if it might not feel like it at the time.
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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