I was shocked recently to discover how few resources my local authority had been able to access about Care Act assessments. Undertaking this work is so vital to the roles that local authorities fulfill, yet targeted training has, for us at least, been quite difficult to source. So I am sticking my oar in, so to speak.
Today I am going to focus on that first contact, and commencing the assessment process. We’ll then look at some of the other issues that come up during the process in my next two posts.
The care and support statutory guidance tells us that the assessment process starts at first contact. When that referral comes in, the assessment process starts.
Let’s assume, for today, that ordinary residence is clear and that the continuity of care provisions are not engaged. You can see my previous posts on ordinary residence here and continuity of care is a separate issue in its own right that I will hopefully cover in the future. We’re not talking about assessment during hospital discharge either, today which is dealt with under Discharge to Assess that I have written about before.
Now the care and support statutory guidance is clear that the process of assessment starts when first contact is made. Local authority systems differ nationally, but most I have come across have some variation of a ‘single point of access’ system. This is usually a team of people that take basic information and make referrals on to other parts of the organisation as needed, including for assessment by a social worker for Care Act needs.
I say social worker, but any number of professionals might actually carry out that assessment, depending on the type of needs discussed during that first contact. The Care Act doesn’t say that these assessments have to be carried out by social workers, just that they have to be carried out by staff with suitable knowledge and expertise. So in this context, I really mean the broader term of ‘social care worker’ that can include social workers, occupational therapists and other suitably experienced assessors.
One of the first issues that often comes up is how individuals can access information about what the assessment process is like, what sort of questions will be asked etc. Under the Care Act s4, local authorities are required to provide information and advice about this and other social care related topics. This information also needs to be accessible to all so braille, large font, easy-read versions etc should be available to support these conversations. Staff should be able to signpost to or provide this information early in the process.
Basic information is also collected at that early stage. Most of it is relatively straightforward: name, address, contact details, reason for contacting the local authority. What shouldn’t really be taking place at this stage is any ‘screening’ exercise to prevent or delay an assessment. The triggers for the duty to provide an assessment is that the person ‘appears’ as if they ‘may’ have needs. So in the vast majority of cases, the individual will be contacting the authority in good faith and this very low threshold will be met.
Which brings us to the issue of consent. Because the duty to assess under the Care Act applies unless the person refuses, so the issue of consent can get lost. After all, the statutory requirement is an absence of refusal which we all know differs significantly from consent. Yet consent underpins any intervention into someone’s privacy and autonomy.
Although the wording of the Act doesn’t bring consent to the fore, there is logic to it. And that logic comes from the Mental Capacity Act. You see, if consent is required for an assessment, then anyone who lacks capacity to consent would be denied an assessment. There are other ways this could be avoided, but the legislative drafter chose this way, and we have to stick to it.
This doesn’t mean capacity doesn’t come into it, of course. Because every step of an intervention can only be taken either with consent, or in best interests, at least in this context. Emergency intervention powers do exist in limited situations but that is also beyond the scope of this note.
I went to a very helpful training session a few years ago where the issues of consent and capacity was described as an issue that needs to be considered ‘at the doorstep’. In other words, it comes first.
True consent requires transparency and understanding, hence why the information and advice offer is so important. At initial contact, the local authority is going to ask some questions, is the person comfortable with answering those questions? Do they understand the questions? Do they need support to understand?
The actions following on from that conversation are likely to be a further conversation with a different professional, perhaps even a face to face visit. Is the person happy to speak again? How do they feel about someone visiting them? Do they have any requirements for that? It’s not as simple as it seems, and ineffective communication is one of the most common issues in local authority complaints. So these things really need to be considered throughout the process, not as an afterthought, or left until the support planning stage.
It isn’t considered once and that’s the end of it, though. It is often a moving target. At the doorstep, there might be no reason to doubt the person’s capacity. But that might change once the conversation starts, or at any other point in the process.
Capacity is particularly important when it comes to refusal of an assessment. I have discussed before how important it is to be sure of capacity before treating someone as refusing, or not engaging with support. That’s no different in this context either.
Of course s11(2) doesn’t say that an assessment must automatically be carried out if someone is purporting to refuse but lacks capacity to make this decision. The duty to continue with the assessment exists if they lack capacity to refuse and carrying out an assessment is in their best interests. It will be in the person’s best interests in most situations, but for some the intervention will have negative consequences such as distress and anxiety. Such negative consequences may well be outweighed by the benefits of having access to support, but not always. There are few hard and fast rules when dealing with mental capacity law, after all.
What also has to be borne in mind when treating someone as refusing an assessment if they are at risk of or experiencing abuse of neglect, according to s11(2)(b). This can create something of a conundrum, since the local authority will be obliged to carry out the assessment, but will not have powers to require the person to engage with that process. If the person refuses consent for medical professionals to discuss their circumstances with the local authority then the information contained in the assessment will likely be very sparse. That is not through any fault by a professional and there is very little that can be done if a capacitated person doesn’t engage in the process. Such is life.
We’ll look at the eligibility criteria, the issues of proportionate assessment and recording of contradictory evidence in future posts on this topic, but that will probably do for now.
The only other thing I’ll say at this point is that issues around data protection arise too, but that’s outside my expertise. So this is just a little reminder to make sure you have recorded your basis for processing information to avoid big problems later.
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