Improving family and carers' involvement in best interests decisions

If you haven't seen it already can I draw your attention to an excellent new resource to help ensure carers and family are involved in best interests decisions where appropriate.  It was developed by Ambitious about Autism, Mencap and the Challenging Behaviour Foundation in conjunction with solicitor Alex Rook at Irwin Mitchell Solicitors.

The role of family in best interests decisions

Under s4(7) MCA, if a person lacks the mental capacity to make a decision for themselves, then best interests decision makers must (amongst other things):

... take into account, if it is practicable and appropriate to consult them, the views of—

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare,

(c) any donee of a lasting power of attorney granted by the person, and

(d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6)

The tools developed by the above organisations include template letters for situations where families feel excluded from decision processes or from decisions which have been taken, which will be very useful for a range of situations.  The information and resources are certainly very much needed.  One of the questions I am asked most frequently by carers, and in particular parent carers, is 'what about my views?', and this is often conjoined with an expression that they - not 'experts' - know the person best.  I respond by pointing them to s4(7) MCA, and the duty of best interests decision makers to consult those involved in caring for a person.  

Deprivation of liberty: The case for a statutory definition

During the consultations which preceded the deprivation of liberty safeguards (DoLS), many respondents stressed that clear guidance on the meaning of ‘deprivation of liberty’ would be essential for the DoLS to operate effectively, including: Bupa Care Homes, the Commission for Social Care Inspection, the Mental Health Lawyers Association and the Mental Capacity Lawyers Association, the British Association of Social Workers, the English Community Care Association, Age Concern, the Alzheimer’s Society, the Mental Health Act Commission, the Law Society and the British Medical Association. The government rejected a statutory definition on the grounds that the point of the DoLS was to protect people against unlawful deprivation of liberty, and the meaning of deprivation of liberty could only be given in case law. I very much doubt that any of those bodies would agree that we have yet achieved a clear consensus through case law. The 2010 report of the Mental Health Alliance and the Care Quality Commission’s (CQC) most recent report on the deprivation of liberty safeguards (DoLS) confirmed that there is considerable uncertainty over the meaning of ‘deprivation of liberty’, which is leading to significant difficulties in the operation of the DoLS. I want to suggest that there are a number of practical and policy reasons for thinking about decoupling the scope of the safeguards from the meaning of ‘deprivation of liberty’, and introducing a statutory definition which creates clear and consulted upon boundaries for their use. 

Relaaaaaaax, just have (blind) faith in your RAS

[Note: The research referred to in this post has been expanded upon since it was written and published in the Journal of Social Welfare and Family Law (Series, L. & Clements, L. (2013) 'Putting the Cart before the Horse: Resource Allocation Systems and Community Care ', Journal of Social Welfare and Family Law, 35(2) 207-226).  A pre-print version of this paper can be downloaded from here]

Last year I wrote a piece about transparency and personal budgets, which has had consistently high traffic so I assume it's a piece of general wider interest.  Since I conducted that initial research last summer, I embarked upon a more careful piece of research which sought to unpick different Resource Allocation Systems (RAS's) of several different local authorities.  I'm hoping, at some point, that my findings on RAS's will be published 'properly' and I don't want to give away too many spoilers until that paper is ready, but I did just want to comment on the ongoing transparency issues I've faced.  

In general, since my last piece of research, local authorities have been more willing to disclose their RAS algorithms to me.  I have a funny feeling that putting in my FOI request letter that it was for research into transparency helped somewhat.  In the event, only two refused disclosure - Croydon and Hackney - but their reasons for refusal pose wider democratic and accountability question about the RAS, which I want to consider in more detail.