Refusal of care: when it’s not so simple

Today I want to talk about an issue that I have come across regularly in practice: individuals who are refusing care. The reason I am talking about this is that I have seen this concept misused by public authorities when this is convenient for them. I have a case at the moment where this is a particular issue so I will talk about L. However, I have changed some details and will be vague in parts to keep L’s identity confidential.

At the time I became involved, L was living in their own property, but had previously been detained under the Mental Health Act 1983. They were seeking support at home under s117 aftercare and liaising with the local authority and integrated care board about this. L’s diagnosis is rare and complex, so the professionals had not had much experience working with individuals with their types of needs, so specialist clinicians had also been contracted by the integrated care board.

At that time, their care package was for 4 calls a day, but this was not being delivered. L was at significant risk on their own because of self-harm and self-neglect risks, but also from exploitation by others. L’s ability to protect themself was limited and there was a documented history of serious assaults and police involvement.

The problem we came across was that the authorities were commissioning carers to come in and do specific tasks such as morning personal care, managing appointments, shopping etc. So what the carers would do is complete tasks on behalf of L and then leave again. However, what L actually needed was prompting to complete tasks, including sensitive encouragement. With that support, L was capable of achieving these things for themself.

Now the concept of prompting is pretty common in social care, as far as I am aware. I’ve certainly seen it on many a care plan. Yet the care agency (and subsequent agencies since) was incapable of providing this service, apparently. This led L to become increasingly frustrated with services, understandably. The impact of this on L’s mental health was significant and a number of crisis incidents have occurred throughout my involvement.

The authorities’ response was largely to criticise L for being unreasonable and being overly demanding of carers. More than once it was suggested that L was non-compliant and that they would consider L to be refusing the care offered.

Let’s unpick that

Firstly, it is not at all disputed that consent is needed for care and support, whether under s117 aftercare or the Care Act 2014. Neither piece of legislation gives authorities the power to enforce care on someone unwillingly (thankfully). If L told the professionals that they didn’t want any care and support, then the authorities could treat their duties as discharged. Although L would retain entitlement and could request support at a later time.

If L lacked capacity to make decisions about care or residence then the situation might be more complicated. But they were assessed as having capacity so there’s no need to discuss that today. So they were in a position to refuse care, if they wanted to. But they were asking for care consistently and clearly. Just not the type of care that was being delivered.

Secondly, there is a case reported (referred to as Kujtim), which does support the principle that local authorities can treat refusal to comply with reasonable conditions of a service as refusal of a service. It’s a case about housing duties but the principle is very likely to apply in social care and health care scenarios as well. It hasn’t, to my knowledge, been specifically argued in a reported case though.

There are a few provisos to the principle in any event. Firstly, L needs to be aware of what the conditions of the service are, and they need to be expressed as such. This often takes the form of a behaviour agreement or letter setting out the expectations. No such document was prepared by the authorities responsible for L. In fact, on my reading of the case, in addition to notice of the conditions, a warning of what will happen if the conditions aren’t complied with is, at the very least, advisable.

Even if proper notice of the conditions had been given, those expectations would need to be reasonable. There’s a lot of room for interpretation in the definition of reasonableness. But I am going to go out on a limb and say that it’s likely not reasonable to expect a person to accept carers in their home who aren’t meeting their needs or following agreed plans, without complaint. I could be wrong, but I’d love to see how a public authority wriggled their way out of that one.

Thirdly, as a general principle of public law, public authorities should not benefit from their own errors or wrongdoing. But that is exactly what they were trying to do in this case. They failed to provide appropriate support that could meet L’s needs, and openly admitted this. That failure prompted L’s response, which they were then seeking to rely on in order to say their duties were discharged. In my view, this boiled down to “we can’t meet our duties, so we don’t have to”. And that seems like a very dangerous precedent to be setting.

Now this doesn’t mean I am not sympathetic to the difficulties the authorities experienced in this case. I am well aware of the problems in the care market at the moment. Of course, the local authority also has market shaping duties that mean it ought to be at least trying to improve the situation but that’s a whole other story…

My point is that seeking to blame L was neither a sound legal argument, nor good social work. It put further strain on an already very difficult relationship between L and the professionals supporting them and achieved nothing whatsoever.

When I finally have an outcome on this case, I will provide a further update!

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.

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