Today I want to talk about one of the more time-consuming aspects of my job: reviewing social care records. Or, more accurately, reviewing social care, care provider and healthcare records.
You may or may not be aware, but it is standard practise in Court of Protection proceedings that the court will make disclosure orders requiring local authorities, local NHS bodies and care providers to disclose records to to the solicitors acting for the incapacitated individual or ‘P’ as we tend to refer to them. That means for pretty much every case that I have ongoing (which can be anything from 10 to 30 depending on complexity) I’ll have a large amount of paperwork arrive on my desk either hard copy or digitally and it’s my job to go through them. Why you might ask, well let me tell you why
You see, in most situations a lawyer takes instructions from their client and they will sit down in an office together or over the phone and the lawyer can ask all the questions that they feel they need to ask to make sure they have all of the relevant background information from their client to inform their case. In such a situation, the client can also help the lawyer by telling them which arguments they do or don’t want to be raised and identify what their priorities are in terms of outcomes. In the vast majority of cases my clients aren’t able to do that. They are perfectly capable of telling me what it is that they want sometimes but that doesn’t mean they are able to furnish with me with all of the relevant factual background to enable me to formulate a case on their behalf. So instead I have to go searching for my information elsewhere. And that, fundamentally, is why the court makes disclosure orders.
Those orders are usually made in the early stages of a case, often at the first directions hearing. There are standard orders that almost everybody uses at this point and they require the relevant named organisations to disclose records to the instructed solicitors acting for P. I say require because sometimes organisations forget that fact and try to treat these orders as if they are requests along the lines of subject access requests under data protection legislation. They are not. The court has determined that it is in that person’s best interests for their records to be disclosed to the solicitors and so if the organisation does not want to disclose the records they need to apply to court to have that order set aside. They might try to simply ignore the request or delay responding until everybody has forgotten that those orders were ever made but it is very rare for a case to conclude without the solicitors having the opportunity to review those records.
When I receive these records they come in various different formats. Sometimes they are paper records delivered in a large box. Other times they are electronically shared by way of secure email. Almost always they are in a less than user-friendly format and I’ve been known to spend a whole afternoon sorting through records trying to get them into some kind of workable order. That’s task that I weirdly enjoy but I’m also the kind of person who stores their DVDs and CDs in alphabetical order. But that’s probably enough about my character flaws for today…
I think a lot of professionals forget or simply aren’t aware that the solicitors are given these records. And the ones that do know we have those records are often unaware of what we are doing with them. If you’ve been reading this blog for a while, you know that I’m very much about sharing information so that we can all have a better understanding of the way that these processes work so I thought it might be helpful if I set out a bit about what I do when I’m going through these records.
Let’s start with time period, sometimes the court will dictate how far back records disclosure needs to go but most template orders leave it at the discretion of the instructed solicitors as to how much of the records they need to see. For me, how long those records need to cover depends on the facts of the case. If the case is about a placement that he’s been in operation for 18 months then I will probably want to see 2 years worth of the records. The reason for that is that I want to see what the person was like before the placement was made. If the placement is brand new, then I will go back to see the circumstances that have led up to replacement being made, for example leading up to the hospital admission or the previous placement breaking down or what the situation was like for them at home prior to moving into a supported placement. What this does is help me understand what the person’s baseline type presentation is and how we’ve landed in the situation that we’re in.
In some cases it will help me to understand why the actions taken by the public authority have been considered to be necessary. For example, if the person was living at home and there were a number of long-standing safeguarding concerns, it helps me to get an understanding of what those concerns were. And yes, I might get that information from the social worker or care coordinator statement but I might not as the level of detail contained in a statement can vary significantly. Indeed it is not uncommon for me to look at records and see that the evidence supporting the professionals conclusion actually tells a somewhat different story.
When I say that, I am thinking specifically about a case I worked on where the social worker said that the incapacitated person’s mother resisted attempts to remove him from the family home and very much implied, if not outright stated, that her behaviour on that day had been wholly unreasonable. However, when I got the records, what the notes from that day actually said was that when the social worker showed up unannounced on her doorstep to take her son away to an unnamed placement she said “well you need to give me a bit of time to get him ready”. Or words to that effect anyway. Given that her son had been diagnosed with autism and struggled with changes in routine, that is not an unreasonable response. But I’ve had other inconsistencies come to light too.
Most of the time, though, I am not looking at those records to try to trip anybody up. I’m not expecting there to be some smoking gun in those records that undermines and contradicts everything that professionals have been saying. Because most of the time the professionals are doing at least a vaguely competent job. Rather, what I am looking for is, first and foremost, just a better understanding of my client as a person. I want to understand what they’re like, what they enjoy and what their life day to day comprises.
Records also often provide me with some insight into what the person is and is not capable of and help me to appreciate whether their current presentation represents an escalation or deterioration, or whether it is the norm for them.
Another thing I do, when going through records, is look for patterns. For example, if there is challenging behaviour evidenced in the records then I will use them to see if there are any obvious triggers for that behaviour. For example, if a challenging behaviour gets worse shortly after a move and then settles or if it seems to happen around doctors visits or time spent with their family. Things like this are also often picked up by professionals, but not always, which is why we get these records to provide that extra independent check. I’ll particularly pay attention to this in cases where the individuals behaviour is having an impact on the options available to them because if we can identify the triggers we may then be able to do something about those triggers and then their options might be increased.
Now before every social care professional out there comes at me to tell me how difficult it is to identify triggers and find ways to work around them: I am not in any way suggesting that any lawyer is in the best place to do that piece of work. It’s not what we’re trained to do. But what we are trained to do is to process large amounts of information and use a critical eye and some logical judgement to apply that information in particular ways. And after looking at records I would never say to the professionals “this behaviour is definitely linked to this particular circumstance so you need to stop that circumstance from arising”. What I might say is “having looked at the records there seems to be some correlation between this behaviour and this trigger, can the professionals please consider this if they haven’t already done so”. And sometimes they will have done and they’ll be able to provide me with a full and detailed explanation. And sometimes they won’t have done and they’ll go away and look into it which may or may not lead to a different outcome. But it’s not intended as a criticism. It is often just that frontline professionals are too close to see what we can, when we come in as a ‘fresh pair of eyes’. It’s intended to be helpful. Most of the time anyway.
Now you might have gathered that this is a very large amount of information to sift through. In some cases this is an absolutely mammoth task. And because most of the time my work is legal aid funded, I always have to be mindful of proportionality. So sometimes what I might have to do is identify the key documents and only look at those in real detail. Or only look at certain times such as the first six months of a placement and then the most recent 6 months of a placement, rather than the full 3 years. Because if I’m submitting a bill to the legal aid agency for a week’s worth of preparation and perusal of records, i’m expecting there to be a lot of questions.
So there are certain documents that I will always look at first, such as care plans, risk assessments or best interests documents. In health records, I will usually go straight to letters as that will usually give me a good overview of the situation and help me see if there are other pieces of information I want to look into further. With care provider records, I’m usually looking for information about what the person’s activities are and things that can have a meaningful impact on on the person’s life. If it’s a case where challenging behaviour is an issue then I’ll be looking for that or if the person is refusing care or refusing medication I’ll be looking to see how frequently that is happening so that I can better understand how big of an issue that is. That is often my least favourite part of this task because an awful lot of care providers are still keeping handwritten care notes and by the time those have been photocopied or scanned and then printed and then sent to me they are not the most legible. Nothing gives me a migraine faster than reading cramped hurried handwriting in some narrow tabular format. But it’s an occupational hazard.
Beyond that there are certain red flags that I will be looking out for. My eye will instantly be drawn to certain words or phrases. And in the interests of fostering greater understanding in this area of work I’m going to let you know the particular needles that I am looking for in care record haystacks.
Sedation is a big one. If I see PRN lorazepam on care notes regularly, that’s going to draw my attention and I’m going to want to ask professionals more questions about the appropriateness of continued use of sedating medication. That doesn’t mean that there aren’t some cases where this is entirely appropriate. It just means that further checks have to be carried out because this is such a drastic step to take and it can have a big impact on an individual’s life. If we can remove triggers for the behaviour that is requiring use of PRN medication and thereby alleviate or reduce the need to sedate them, then this is generally going to be the less restrictive option.
Any other form of restraint will also catch my eye for exactly the same reason. High ratios of care (and by that I mean over one to one support) for significant periods of time is something that I’m going to want to explore. That is particularly true if there is any suggestion in the records that this might be related to something other than the individual’s care needs. For example, I have seen two to one care be put in place in order to protect staff members from allegations by the individual concerned. This is quite a significant restriction to put in place for that individual so we would want to ask some questions about the proportionality of that measure and whether there might be something else that could be done to mitigate this risk.
Covert medication sets alarm bells off in my brain every time I see it, too. Especially if I am only hearing about it at the point I am looking at the records and it hasn’t been flagged in any of the statements or DoLS assessments before now. Again this is a significant restriction and we need to be sure of the proportionality of that step.
Other things that stand out to me are controls on the person’s contact with other people or restrictions on their access to the internet and social media, which is an increase of concern in a lot of cases that I’m dealing with now.
Where P is complaining about not getting enough support, or support to do things they want to, the records will offer some insight into whether this is a valid criticism or not. Sometimes it is, but often it isn’t.
Another thing I like to check is whether referrals for appropriate input are being made. Too often care providers are left to figure out strategies and support on their own, when referrals to other services such as occupational therapy, speech and language therapy or mental health services would be more likely to provide effective guidance.
There will always be other issues relevant to each particular case. So there is no checklist to follow and it is definitely a skill that comes with experience, working out what is worth questioning and what is likely to be merely an error in recording on the part of someone who is no doubt having a very difficult day.
Ultimately, what I read in the records will guide what evidence we ask for. So when we raise questions that seem ‘out of the blue’ it is not just a solicitor being difficult. It is because we have seen something in the records that has prompted the question. And this is an important part of a meaningful independent review. It is one of the ways the system provides protection against errors and oversights in an over worked system.
Generally, the clearer the records are, the less questions we’ll have.
And that is something I wish all professionals would be more aware of.
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