It’s often said in court of protection proceedings that the court ought not to micromanage a care package. That is certainly true but the court does need to properly scrutinise a care package to ensure that it is in P’s best interests. There is a balance to be struck and today I’m going to talk about how we find that balance.
A certain barrister, who shall remain nameless, in proceedings I dealt with recently responded to every question I raised in the round table meeting by telling me it was not my job or the court’s job to micromanage the care plan. Their view was that we are to trust the professionals whose jobs it is to create and implement an appropriate care package. In theory I don’t have a problem with that, however in practise it becomes somewhat problematic.
In that particular case, my client had been in the care home for around 2 years. Throughout the entire time she had been objecting most vocally and generally very unhappy. She entered the care home straight from living alone in the community and she believed she had significant skills to look after herself. The care home disagreed as did the professionals.
Some attempts had been made to engage my client in rehabilitative type work to enable her to build and demonstrate these independent living skills. She had not engaged. The fundamental issue for us was that my client was able to engage with some professionals but was very non-compliant and rude to her day to day carers. For us that raised the question of whether the approach by the carers was prompting her challenging behaviour.
They were also issues around my client’s access to the community and contact with her family. She told me she was very keen to get out in the community and spend time with her family, however the care home staff said that when this was offered, my client categorically refused.
Now to me whether the care home staff were able to approach my client and communicate with her in an appropriate way was a big part of whether this care package was in her best interests. Not least because my client said that she was willing to stay in a care home temporarily whilst she built up the necessary skills to return to living in the community. So if the care home was not able to support it to build those skills then it begged the question of whether it was the right placement for her.
When I attended the round table meeting I asked the local authority, not for the first time or the last time, whether there was a written strategy or plan in place for how care home staff communicated with my client. For example, I once had a client who would categorically refuse to leave the home if you asked him if you wanted to go, but if carers simply said to him “I’m going to go for a walk to the shop” he would usually put his shoes on and go with them. Because there was something about the phraseology and the way that care home staff communicated that meant he just responded better to the latter than the former.
It seems like it should be fairly straightforward for care home staff to keep track of what they’ve said to my client and how she’s responded and so over 2 years I would have expected the care home staff to have a good knowledge of how to communicate with her to get the best response. So I didn’t think my request was particularly unreasonable. The local authority disagreed for reasons I still can’t really explain. So in this particular round table meeting their barrister simply said to me that we had to trust that the care home staff were doing their jobs appropriately. Except it had been 2 years and no progress had been made so I don’t really think that trust had been earned.
Indeed it’s more worrying than that, because if we followed that barrister’s train of thought then it undermines the effectiveness of the entire process. If solicitors and the court asking questions about a care plan amounts to micromanagement then what is the point of them being involved at all? If the court is simply going to agree with the professionals without any probing of the evidence then how is it any protection at all against inappropriate use of public powers? If that argument was followed through then all the court could do is ask if there is a care plan.
In all my years of doing this job I have never come across a case where all of the issues and all of the options have already been fully explored before the court got involved because professionals, however well-meaning, often have blind spots and that is why the process exists to challenge and scrutinise decisions made by professionals on behalf of public bodies.
And the fact that this argument was raised by the local authority made me question what scrutiny the local authority had given to the care package. The local authority is ultimately responsible for making sure someone’s care needs are being appropriately met and that restrictions are proportionate to the risks identified, so they ought to be scrutinising packages to satisfy themselves that arrangements are appropriate. If the local authority is simply deferring to the care home and trusting that they are doing their jobs properly, it makes it seem like they they are not taking their duties very seriously either. Which is all the more reason for me to give it a bit of scrutiny.
I have been involved in far too many cases where the local authority (or NHS body) has acted as if its involvement begins and ends with identifying placement. But a placement alone is not a package. The home itself might look like it can provide everything a person needs, but if it doesn’t have appropriate staffing or its staff are not properly trained then it’s not going to be able to provide appropriate care. And care should be personalised and adapted to each individual’s needs. But how can a public authority know if that is what is happening if it is making a decision purely about a placement. The placement will be the same for every resident within a care home but that doesn’t mean their care package will be the same. They will each require different levels of support and have different tasks that they are able to complete independently. They will each have their own preferences, their own personalities and their own quirks. So the approach that carers need to take to each individual will vary. And in a care home where staff have been there for a long time and a consistent approach has been developed then it should be the case that staff are doing all of this even if it isn’t written down. But if it isn’t written down, then the care home has no way of showing new care staff or any agency staff are following the same procedures as established staff. And in cases where there is an issue lack of recording makes it very difficult to demonstrate that an individual approach is in fact being taken.
From a legal standpoint, it is certainly possible for a social worker to delegate certain parts of their role to someone else. That is the basis upon which authorities across the country make broad-brush decisions about care and leave providers to iron out the day-to-day details. Often that approach that works pretty well. The care provider knows far more about what they can provide each day than a social worker will so having them fill out the detail make sense. But the social worker or care coordinator or whatever professional is taking the lead still retains the duty to ensure that care is appropriate.
And in some cases, like with my client, more thought needs to be given as to the strategies in place and it seems bizarre to me to expect care staff to be able to do that alone without input from social workers, nurses and mental health professionals who have far more experience and expertise than the care staff at dealing with these complex issues. Yet this is what happens in so many cases because the whole system is under so much strain the jobs just keep past getting passed down until either the job doesn’t get done or it gets done by someone without the necessary expertise.
The carers will undoubtedly be able to say what they do each day and how my client responds to that, but it seems unreasonable to expect them to be able to pull together a complex strategy for someone whose needs are not straightforward. So what I wanted it was a multidisciplinary team discussion around this.
That isn’t what happened. What happened is that the local authority neatly dodged this question until they found an alternative placement. Then they moved her and told us and the court that the new care home would put in place their own strategies. Strategies I still haven’t seen by the way.
The point is that I agree there is a certain amount of work that can and should be done by the care provider and that the court should be wary of straying too far into decisions that are to be made by care professionals. What I don’t agree with is the idea that questioning elements of a care package that appear not to be working or don’t appear to make complete sense ought not to be challenged for fear of micromanagement.
Like all things in this area of law, we are balancing competing demands, trying to ensure resources are used appropriately while still insuring individuals get the support they need. Where the balance lies in terms of the level of scrutiny to be applied will always vary from case to case depending on the individual concerned. But telling a solicitor that their asking questions amounts to micromanagement is likely to only increase the level of scrutiny they apply. Because it just makes us think that there is something you’re trying to hide and that makes us want to find out what’s really going on.
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation