I am prone to overthinking, so I tend to spend a lot of time thinking about what other parties to any particular case might be thinking and planning, identifying what advice I might give them, and strategizing accordingly. But this case really has me stumped.
So today’s post is based on a current case of mine, but names and any other identifying information have been changed. I’m going to explain why the approach has me baffled, and how damaging it has been for the person involved.
Our cast of characters for this particular story are:
M – a working age man. He is articulate, intelligent and very insightful. He’s been let down by a lot of people and has a history of trauma. He is very sensitive to perceived injustices and the behaviour of others towards him. His diagnosis is in dispute.
SW – M’s social worker. She’s been qualified for 2 months at the point she is allocated to M’s case. It’s becomes obvious very quickly that she is out of her depth.
LA Solicitor – the local authority’s solicitor who is, well, not me and not someone I’d want on my team.
LA Barrister – the barrister instructed by LA Solicitor.
Specialist Therapist – M’s speech and language therapist. She has been working with M for 5 years, and developing strategies with him to help him express his wants and needs to his care team, amongst other things. She is one of the few people M trusts, and has provided valuable input that has resulted in significant improvement for M. SW does not agree with her methods or value her input, however.
There have been long-running disputes between various professionals and M about his care package. M is quite clear about what he thinks he needs. It is important to him that he feels listened to and understood. He doesn’t feel like SW listens to him. Specialist Therapist has attempted to assist but this seems to have only aggravated the situation more. It’s been tense. The viability of the current care package is at risk as carers are struggling to do what M wants and needs, and when his complaints are not listened to, he can be somewhat terse with the carers.
You might think that the way to improve the situation is to adjust approach so that M feels involved. Perhaps work on some strategies to improve the relationship between M and his carers. Some might even say that it is a legal requirement under the Care Act and Equality Act to adjust their approach so as to meet M’s needs.
Spoiler alert: that isn’t what happened.
I assume that SW spoke to her managers. She must have spoken to LA Solicitor too for some guidance. It was definitely a difficult situation for SW to find herself in so early in her career. From what happened afterwards, I can only assume the conversation went something like this:
SW “I really don’t know what to do with this case”
Manager “yes it’s really very tricky”
LA Solicitor “lets just make an application to the Court of Protection and let a judge figure it out”
What followed was a poorly drafted application to the Court of Protection. I say poorly drafted because the capacity assessment made it abundantly clear that SW had no idea what she was doing. It didn’t assess M’s capacity in relation to residence or care, but rather to “being safe in the community”. Being safe in the community isn’t really a decision, though. It relies on a lot of factors that are completely outside of M’s control, since the world is full of dangerous drivers, fire hazards and an abundance of creeps and weirdos that might try to do M harm. And M is very vulnerable to exploitation by others. He acknowledges this, and wants a care package that helps him manage this risk and build independence to assist in maintaining his independent living skills.
The application is also very vague on what it is the local authority wants the court to decide. It may as well have just read “HELP!” in big red letters.
The effect of this was entirely predictable to everyone (except at least some of the professionals involved, apparently): M became more frustrated and distressed. He found it even harder to engage with his care and support. Because SW (and the local authority she acts for) were basically saying to M that they didn’t think he could make any decisions for himself. Or at least that’s how it came across, due to the badly worded capacity assessment.
In doing so, M perceived the local authority as trying to take more control away from him. Trying to control him. It reinforced his belief that they weren’t trying to listen to him or trying to understand his experience. “We know best” is the message he heard.
To make matters worse, SW made very little effort to explain what was happening, or why. She told him she was making the application and then didn’t speak with him again for about 6 weeks. The carers had to deal with the fallout. Specialist Therapist tried to provide guidance, but at this point it was like a bunch of cats that have all found themselves in the same space. Defensive and standoffish. I don’t think there was actual hissing. Metaphorical claws were definitely out.
As I said, M is intelligent and articulate. He reads people well a lot of the time, but tends to suspect some people of wrongdoing without necessarily having any evidence to support this. He can also act entirely contrary to that, though, trusting people who might do him harm. He also has emotional outbursts, and can become cripplingly anxious in certain everyday situations.
He is wise enough to sense how uncertain SW is about what she should do. And it takes his anxiety levels to 11.
If that wasn’t enough, at various stages during the proceedings (in front of M, no less), SW criticised Specialist Therapist and almost every other professional involved. LA Solicitor and LA Barrister repeatedly said that the current carers aren’t able to meet M’s needs. They as much as said the local authority was out of its depth, seeking to pressure local NHS services to take more of a lead.
Now I generally advised against publicly arguing with the NHS when I worked in-house. That doesn’t mean we didn’t argue with our NHS colleagues, but it did mean we tended to do it quietly and behind closed doors. That was largely for political reasons, and in light of the Care Act co-operation duties.
In this case, though, this was even more damaging for M. What M needed most was stability, and to be able to trust someone. Anyone. The more everyone argued, the less safe M felt.
And we did consider having M not attend hearings, to avoid having to listen to this. But M still knew what they were arguing. It was obvious to him every time I spoke with him to get wishes and feelings. He could tell from what I asked what was going on. And I can’t do my job without giving him at least a flavour of what is being discussed in the proceedings. Knowing their approach, he became incredibly concerned that people were criticising him “behind his back”, so to speak. So we were stuck between a rock and a hard place.
Again, you might think professionals would factor this in. A consideration for any best interests assessment has to be the impact the actions will have on M. He’s going to need support for the rest of his life, in one form or another. So burning bridges so he feels like he can’t trust any professionals seems highly counter-intuitive. It’s a factor I’d have attracted a lot of weight to, if I’d been advising SW. In fact, I’ve historically advised against enforcing an injunction before because it would have put an end to any hope of P ever trusting anyone affiliated with the local authority.
But I digress.
For reasons I cannot fathom, that was not the advice given. Or, at least, it wasn’t the approach taken. Instead, LA Solicitor and LA Barrister start doubling down. They start criticising M for his behaviour. They referred to him as a bully, at one point, and stated the local authority believed he was sabotaging the care package. The same care package that is, you know, not meeting his needs. By their own admissions.
Carers weren’t following care plans. The provider couldn’t consistently staff the package. But when M complained, SW and her managers said that he was being unreasonable.
It struck me that expecting the solution to the problem to be M changing his behaviour that is as a symptom of his illness is somewhat unachievable. No one appreciated it when I pointed that out, though.
Everything ultimately came to a head during a contested hearing. LA Barrister was critical of Specialist Therapist when she was in the stand. His questioning focused on details of the therapeutic input which wasn’t even within the scope of the court’s decision-making. M found this very difficult.
Then SW gave evidence. She floundered, as she would. I’ve had social workers with decades of experience come to me nervous about preparing statements in the Court of Protection. I used to help all my social workers with their statements, anticipating questions the other parties might ask and identifying weak points before evidence was filed. It was abundantly clear that LA Solicitor had not been doing that. SW had changed her position so many times, no one was really sure what she was going to say on the day.
When the other lawyers questioned her, she was close to tears. So much so the judge suggested she stop giving evidence and everyone discuss whether there was anything more that was really needed from her, given all of her written evidence.
Even M felt sorry for her. He’s very sensitive and even though he didn’t like her much at this point, he found it incredibly uncomfortable to watch. We spent some time discussing how he worried that if the local authority, as an organisation, couldn’t be considerate to its own employees, it would never be able to offer him the empathy and respect he craved. It was heart breaking.
At points we discussed that court tactics are ultimately driven by barristers, and that LA Barrister has a particularly antagonistic style. But as M said, the local authority chose to instruct him. They pay him. They could have instructed him to take a different approach. And, well, it’s difficult to argue with that.
The cherry on this particularly disgusting cake was that later on, it was LA Barrister that insisted SW give further evidence, after the other lawyers had taken pity on her. Nothing she said helped move the case forward and she all but fell apart.
I don’t yet know what the outcome of the proceedings will be. We are awaiting a judgement and that will dictate what happens next.
What I do know is that it will take a tremendous amount of work to get M to trust any of the professionals involved, or anyone linked to them, ever again.
And that cannot possibly be in his best interests.
As a side note, if you are wondering what this case was even doing in the Court of Protection, you are not the only one. That is a whole other story….
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.