The opposite view point

[Mr_Angry]

Many people take the view that once you pass a certain age and show early signs of dementia then you should be consigned to a care home as its 'in your best interests'. This is certainly the view of my social services department but not of myself or my father.

My father is 92 but still fit for his age and can take care of his daily needs, although his mind is slowing down he knows where he wants to live and it is not in a care home. His view is that he has his own home and 'does not need other people telling me how to run my life' nor is he 'paying to be sat in a chair looking at four walls in a care home'. Social services think otherwise.

Following a stay in hospital for a fractured hip a day after being taken into a respite care home (something that never happened in his own home) social services carried out a mental capacity test the decision of which was that it was in his best interests to be taken back into a care home on a permanent basis.

My father gave written instructions to social services that should his mental capacity ever be questioned then as his only living relative I should be made aware of it and be present at any examination. He also expressed the view that he should not be placed into a care home. At all stages of contact with the SS (very appropraite abbreviation given to me by a care worker) they have stated a care home is best for him. They have ignored his requests, they did not inform me of the test nor if he has been legally declared to have mental incapacity, they mearly stated that following the test they had decided 'in his best interests' that he should be placed in a home.

They have so far ignored all my questions and complaints regarding the decision and are in no hurry to set up a meeting with myself and my lawyer. On the other hand they are very quick to demand information about his assets and threaten legal action if I refuse to pay for his care home confinement.

I would be interested yo know if members of this site have dealt with a similar situation and how they went about challenging the SS. As a novice to the Mental Health Act, DOL's etc I get the impression that human rights of the individual count for nothing (not that I was stupid enough to believe that they ever did even in a so called democracy) and that the SS has the law in its back pocket.

 

[elaine n]

I am dumfounded! Surely the SS don't have the power to do this as your father has a living relative?! Have you thought of applying for Lasting Power of Attourney (health & welfare and also finance)? This would give you some control over what happens to your dad xxxxxxxxxxxxxxxxxxxxxelaine

 

[Canadian Joanne]

Hello and welcome to Talking Point (TP). I'm sorry I don't have the personal experience to give advice but I'm sure you'll hear from a number of people.

It is amazing how some people are desperately trying to get their loved ones in care, and justifiably so, while others like you are desperately trying to keep them at home. Feels like SS are being perversely contrary, doesn't it?

Do you have power of attorney for your father? I don't understand how they threaten you with legal action to pay for your father's care. My understanding is that relatives are not legally obligated to pay for care. What has your lawyer said about all this?

 

[jenniferpa]

Welcome to Talking Point.

I'm wondering how "gave written instructions to social services" came about. The majority of people we hear from have never had any contact whatsoever with social services until after an incident, so to have those sort of instructions in place is a little unusual.

I would definitely not be happy about a competence decision being made a day after a hip fracture: anesthesia and pain can make any confusion far worse.

I assume there has been a "best interests" meeting? Is there any form of EPA or LPA in existence?

It may be that in fact a care home IS the best place for him, but it does not sound as if that determination has been made in a reasonable fashion.

I would suggest contact the Alzheimer's Society helpline (unfortunately that will now have to wait until Monday). Alternatively, your father's LA will have a complaints procedure that you might be advised to follow.

 

[Maya]

This sounds odd I have heard of 'best interest' decision making before as they nearly did it for Mum to get her off the ward she was on but I was in the meeting, they involved me and had mum there but she clearly had little capacity. If you think your father has capacity go through the Power of attorney forms with him and an independent person who can verify his answers are his own. You can do welfare one and if he wants to he can state he does not want to be in a home. I am fuming for you !

You could go to see a community care or mental health lawyer... just realised you have just editing. They could advise you on challenging the decision and look at the sort of care plan that could keep him at home. Was he living with you ? Perhaps you could argue article 8 family life arguments about the closeness of your family members in same household and how it has affected him being separated - keep a log of his appearance, behaviour etc and use any deterioration in your arguments. Article 3 harm ? inhuman and degrading treatment - you might need a private medical report for that however to show your father's reaction to being in the care home. Request all the papers under data protection you will need your dad's consent.

I think you should also make formal complaint to NHS/SS about them ignoring your dad's authority - do you have copy? I did same with Mum and they ignored it but kept waving it in their face and copying it to everyone and did POA just before she declined. In this she sepcified that she did not want to go into a care home.

Could you instruct a private (expert) mental health social worker to reassess capacity and look at papers ?

Also if he was in hospital some time did they assess him for continuing care before care issues finalised ? Was there a panel ? CC does not charge the individual for care and different as PCT involved.

 

[janice1]

mental capacity

hi if a consultant has done a mental capacity assessment, and believe that the person has not got the mental capacity to make rational decisions and keep themseves safe, the mental health team together with the consultant and SW may decide that it is in the best interest of your dad to be cared for in a care home.

they can use the Dols to ensure that he his kept in the care home. we have POA both welfare and financial. after a MCA yesterday, the consultant says that mum has not got the capacity to make rational decisions.

ok, all that said, mum is screaming to go home, she was discharched from hospital into a care home with a Dols statute on tueday. the desision about mums future, although we have poa is now that of the proffesionals.

i feel for you, its hard to have your parent go into care, when every fibre of your being is screamung that you want them to be at home. we wanted to take our mum home, but its just not safe she is a wanderer at risk. i hope my explanation helps. Warm Wishes Janice

 

[60schild]

Hi there,

I'm very sorry to read that you're having such a difficult time with SS, and that they have ignored you in deciding what is best for your father. I've had similiar difficulties with SS in relation to my own father.

You really must attempt to obtain a Lasting Power of Attorney for Health and Welfare ASAP, if it's the case that your father wishes you to be actively involved in making decisions that affect his health and welfare. Without one, it will always be possible for SS and healthcare workers effectively to ignore you. Even with an LPA I'm having an uphill struggle getting some of the agencies involved in my father's care to understand that they are no longer entitled to take all the decisions, and that they have a legal obligation to keep me in the loop.

Because there is now an issue about your father's capacity it will be necessary for you to approach an appropriately qualified Certificate Provider, to certify that your father has the capacity to grant an LPA to you. The legislation does not require that the Certificate Provider should be medically or legally qualified, but if you don't instruct somebody with the professional qualifications necessary to make an informed assessment then SS (or others) would be able to challenge the LPA afterwards in court, and they might be able to have it overturned. Since your father's condition is progressive, it might then be too late for you to start again.

When I needed to try to obtain an LPA for H&W for my father I approached a doctor who specialises in assessing disablities of various kinds. I sent him a detailed letter of instruction explaining the legislation and telling him what I wished him to do, which was to make an honest assessment of my father's capacity to grant an LPA to me. I also sent him a copy of the Code of Practice to the Mental Capacity Act, and a copy of the OPG Guidance for people who want to make an LPA for H&W. I asked him to read all of the documentation, but drew his attention to those parts of the documents that explain in particular about what is meant by 'capacity' and how it should be measured. That way, I will be able to produce the letter and documentation later if an attempt is made to challenge my LPA in court. That's the course of action I would now take if I were you.

Also, I chose not to tell the SS that I was making the application/instructing a Certificate Provider, because in the particular circumstances of our case I was concerned that they might attempt to intervene. In the particular circumstances, I preferred to err on the side of caution, and now I'm very glad I did.

If you are granted an LPA for H&W then you will be entitled to decide where your father should live. Grant of a Power of Attorney doesn't confer an unrestrained right to make decisions of that nature, because you must always make informed decisions that are in your father's best interests, and Donees (i.e. persons to whom an LPA has been granted) who purport to act in a manner which is not in the best interests of the Donor (i.e. the person who has granted the Power) can be challenged in court. That's not a step that SS would be likely to take lightly, though.

If you are the Donee of an LPA for H&W it will also be possible for you to intervene should any attempt be made to grant a Deprivation of Liberty Authorisation in respect of your father at any stage. That's a complicated area of law, but basically it is not possible for a DOL authorisation to be granted if the Donee of an LPA for H&W does not agree to any part of the proposed DOL regime, because in that case what is referred to in the legislation as the 'No Refusals Requirement' will not have been met, and it must be met in order for a DOL authorisation to be granted.

I'm sorry to go on at such length but when I read your post I immediately recognised elements of your situation which are very similar to my own, and I can't emphasise too strongly how important it is for you to attempt to obtain an LPA now. I applied (with the appropriate certificate) last October and sent off the completed form for Registration immediately, but it was still late January by the time it was registered by the OPG. That's 3 months, and it will also take some time for you to identify and instruct a Certificate Provider, so you really don't have a minute to spare.

Feel free to PM me if you think I might be able to help. Very best of luck.

 

[60schild]

[...] they can use the Dols to ensure that he his kept in the care home. we have POA both welfare and financial. after a MCA yesterday, the consultant says that mum has not got the capacity to make rational decisions.

ok, all that said, mum is screaming to go home, she was discharched from hospital into a care home with a Dols statute on tueday. the desision about mums future, although we have poa is now that of the proffesionals.

Hi Janice,

That's not actually quite right.

Since your mum no longer has the capacity to make rational decisions in relation to where she lives, you (as the Donee of the LPA for H&W) are now entitled to make those decisions for her. I'm not for a moment suggesting that you should challenge the professionals, because if you are happy with the decision they have made then all is fine. However, if you are not happy that their decision is in your mother's best interests then they are not legally entitled to make a DOL authorisation. Should you wish to have it overturned then you can do so by applying for a Review.

Again: please understand that I am not encouraging you for a second to challenge the professionals if you are happy with their proposals. It's not the case, though, that DOL authorisations can be granted against the wishes of those who have LPAs for H&W. This is a situation that I've recently researched because it came up in relation to my father, and I'm trying to spread the word so that others in the future will know where they stand.

x 60schild

 

[JPG1]

Hello, Mr Angry

Sorry to read of your father's situation, and it's clear from your post that you want the best for him.

Your experience of the power of the SS is one I know well. That’s why they are known as the SS. (Good SWs are also available.) I am far from surprised by what you have to relate here – saddened, yes, but not surprised.

The SS is in a mess at present, and the application of the Mental Capacity Act and DOLs is being abused frequently by the SS, in part because of the way they have been written – it is challenging, to say the least, for many SWs and other healthcare professionals to get to grips with. DOLs are frequently being applied incorrectly, without reason, and can be enormously dangerous if used badly.

A sideline: some SS ‘branches’ are threatening all sorts of nasty things at present, including applying to the COP/OPG to have LPAs removed from people who refuse to bend down and buckle under the pressure the SS is placing on them. The COP/OPG is also refusing lots of those SS applications – informing the SS that they should ‘get their act together’ and not try to use legal processes of the Courts to solve their own inadequacies!

If an assessment of your father’s ability to decide where he wishes to live has indeed been carried out, I recommend you ask for a copy of it in full. (And remembering, of course, that the assessment of mental capacity is ‘decision specific’ – it does not result in a full-blown declaration of incapacity to make all decisions.)

Refuse to contemplate any action taking place, which goes against your father’s expressed wishes. You should have been informed, in advance, and you should have been advising the SW about the most appropriate setting/place/manner/assistance etc that would enable a good decision-making process.

There is little that I can add to the advice given by Maya and 60schild in particular, but I can repeat their advice:

Get that LPA (or both LPAs) in place, if you haven’t already done so. It is definitely still possible.

Ask for a full assessment for NHS Continuing Healthcare as your starting point, and that should have been done before discharge from hospital, so they have not followed the correct procedure. If granted, NHS CHC should enable your father to remain in his own home, with an appropriate package of care provided and funded by the NHS. You must be involved in that NHS CHC process from the very beginning. Put your requests in writing to the PCT.

Get a copy of the mental capacity assessment that was carried out, to determine your father’s ability to decide for himself where he lives.

Good luck, and your 92-year old sounds as though he’s got the measure of the SS! Wish you well.

 

[Mr_Angry]

Thanks for the comments

I would like to thank everyone who has replied and address a number of points.

1. LPA - This does not exist. I have an EPA over property/finance drawn up in 1985 which comes into force when my father lacks mental capacity. As neither myself, my father or my lawyer believe that is the case I have not registered it with the Office of the Public Guardian. I also have a more recent GPA to act on my fathers behalf in matters of finance. The SS contacted both the OPG and DWP to find out if a LPA existed.

2. Prior wishes. My late mother and myself have been hounded for over a year by the SS who wanted both my parents to go into a home. Both disagreed. Home help was provided for a limited time but they were next to useless only offering 30 mins twice a day to ensure my father took has tablets and to make a cup of tea both of which my father could do for himself. In the end my mother had a heart attack which I attribute to the stress of fighting the SS as she had no prior heart problems. The day she died the SS were 'just passing by' they discovered the paramedics with my father and it was the SS who telephoned me with news of her death and at the same time to say that they were placing my father into a care home. It would have taken me 3 hours to return to my father but they did not wait or even suggest it. At the first opportunity I took my father out of the care home and that is when I discovered he had been given the wrong medication by the care home staff. It took them two hours to realise their mistake and phone to see if he had taken the drugs. Following this incident he wrote down his statement of intent concerning mental capacity tests, care home etc.

3. Finances - Following my mothers death the SS have been keen to discover the content of her will and requested that I keep them informed of its progress through probate! They have also requested access to my fathers bank details to ensure that my fathers 'financial situation is secure and managed appropriately'. They stated they would 'take steps' to ensure this. They seem to think that I will hand over control of his assets to them or the care home. Even the care home manager said that she was unconcerned about me not paying for incidental expenses as she would just inform the SS who would take me to court.

4. Mental capacity test/care needs assessment. My father was in hospital for 8 weeks prior to the mental capacity test (which they conducted on his birth day. A nice present) as far as I am aware no one from SS had any contact with him prior to the mental capacity test. I have not been informed who conducted the test (I suspect it was the same nurse who spent the previous year hounding my parents) nor have I been informed of its outcome other than my father is back in the same home from which he received the broken hip.

5. Complaints - A formal complaint will be made to the SS which is why I am seeking a meeting between myself/lawyer and the SS to discover the facts. A complaint will also be made to the care home as at the moment that is the only way I will discover if a DOL is in place.

6. Legal action - Obviously something to consider once I am aware of all the facts. LPA health and welfare - at first sight not much use after the fact and appears to be of little use before it as the 'professionals' make the rules. Interesting to read papers about the subjective nature of mental capacity tests. Following comments here I will talk over the LPA issue with my lawyer. My best bet would appear to get them on a technicality/procedure issue. Asked GP recommendation for private mental health expert but GP stated as my father was in hospital he did not wish to get involved and could not make a recommendation.

 

[60schild]

I would like to thank everyone who has replied and address a number of points.

1. LPA - This does not exist. I have an EPA over property/finance drawn up in 1985 which comes into force when my father lacks mental capacity. As neither myself, my father or my lawyer believe that is the case I have not registered it with the Office of the Public Guardian. I also have a more recent GPA to act on my fathers behalf in matters of finance. The SS contacted both the OPG and DWP to find out if a LPA existed.

[...]

6. Legal action - Obviously something to consider once I am aware of all the facts. LPA health and welfare - at first sight not much use after the fact and appears to be of little use before it as the 'professionals' make the rules. Interesting to read papers about the subjective nature of mental capacity tests. Following comments here I will talk over the LPA issue with my lawyer. My best bet would appear to get them on a technicality/procedure issue. Asked GP recommendation for private mental health expert but GP stated as my father was in hospital he did not wish to get involved and could not make a recommendation.

Hello again,

I understand your frustration, but you are wrong to suggest that an LPA for Health & Welfare is not much use, and that applying for one now would be "after the fact".

As you now know, the regime has changed since you obtained an EPA (which relates only to property and finance). The powers conferred upon the donee of an LPA for H&W are far broader than those conferred either by an EPA or by an LPA for Property & Finance. They specifically relate to the very issues you are now facing i.e. issues about where your father should live. They also extend to questions of medication, as well as to all other aspects of your father's health and welfare.

Before you consider legal action, you really should apply for an LPA. I don't know what advice your lawyer may have given you re: this, or what experience your lawyer may/may not have had in this area, but on Talking Point we're all dealing with relatives or friends with dementia, and therefore our experience comes directly from dealing with the very issues that you now face. The most important thing is to get that process going, as it is time-consuming, and then you can consider other avenues if you wish to do so.

JPG1 has also given great advice re: making an application for Continuing Healthcare, and in your position I would be quick to follow it.

Ultimately it's for you to decide, of course, but I really do hope that you will pursue the LPA. The difficulties you've already had with SS are likely get worse and continue for the rest of your father's life if you don't attempt to protect both him and you by taking this vital step now. If it's something that you might wish to pursue then it's very important to grasp the urgency and move quickly.

You can download copies of the Mental Capacity Act 2005 and the accompanying Guidance, as well as copies of all other relevant legislation and documentation. I find it useful to have a printed copy, as well as to have a searchable copy on my computer.

Very best of luck to you again. I'm more sorry than I can say to read about your mother's death. No wonder you are angry

Edited to add: In relation to finding an appropriate expert to act as Certificate Provider, your lawyer should have access to the UK directory of expert witnesses and should be able to use it to help you. If there's a decent law library near you then you may be able to find a copy there and consult it yourself.

Although you don't need to instruct a psychiatrist, my own view (and experience) is that it is always best to instruct somebody who is likely to be at least as professonally well-qualified as any person who might be put forward by the 'other side' to challenge any conclusion that is reached. If, for instance, you choose to instruct a psychiatric nurse or social worker, a judge in the Court of Protection (should you ever end up there) might not be willing to attach as much significance to his/her conclusion as they would to a differing conclusion produced by a psychiatrist put forward by the Local Authority . In your position I would therefore want to instruct a psychiatrist, and your lawyer will be able to look through the directory to find psychiatrists with significant experience of elderly mental health. It's also best to choose somebody who is actually practising in a busy hospital, as opposed to somebody who is retired. This sort of person costs more to instruct, but it would be money well spent if you can afford it.

Once you've identified an expert you'll need a GP referral, and it's not appropriate for your father's GP to refuse to provide one. Providing such referrals is part of what he/she is paid for. I wouldn't want to ask a GP to make a recommendation, though, unless I had a particularly good relationship with him/her. Your lawyer should be better equipped than the GP to help you to find the right one, with the help of the directory.

 

[EmJ]

Welcome to Talking Point.

EmJ

 

[cragmaid]

In relation to finding an appropriate expert to act as Certificate Provider

Actually if you are completing the form with Dad as the Donor of the LPA ( in other words he is applying to have you appointed Attorney when the time comes that he no longer has capacity), you don't need an expert, just one or two people who have known Dad and you for some time as friends. I asked Mum's neighbours, who have known her ( and me) for years and they signed as "neighbour and friend for ..years"

 

[Maya]

That's right as above my neighbour/colleague witnessed Mum's. The witness has to see the person by themselves so there is no undue influence from the named attorney and you can get a relative to sign the POA to show no anticipated objection from family.

It is not a complicated process bit of a long form but not too bad and the processing it with the OPG can take a while so do asap. A lawyer would charge up to £2000 to do this form but you really do not require one at all.

It sounds as if you Dad is clear he does not want to be in the home now and does know own mind at least on this point. You can can then be simultaneously challenging the SS decision with expert evidence but don't delay the POA as that position may change.

The above post is right you need that assessment get SS records and see what this is based on.

Good luck. Let us know what happens if you feel able to.

 

[60schild]

Actually if you are completing the form with Dad as the Donor of the LPA ( in other words he is applying to have you appointed Attorney when the time comes that he no longer has capacity), you don't need an expert, just one or two people who have known Dad and you for some time as friends. I asked Mum's neighbours, who have known her ( and me) for years and they signed as "neighbour and friend for ..years"

That's right, but if there is already some reason to doubt the Donor's capacity (for instance a dementia diagnosis, or reports of irrational behaviour) to make decisions from themselves then it would be easy for a LA to try to challenge the LPA afterwards if the Certificate Provider wasn't qualified to make an assessment.

Mr Angry has said that the SS have already had a mental capacity assessment made on his father, and have apparently concluded that he lacks capacity to decide where he should live. That being the case, the word of an unqualified person as Certificate Provider would carry no weight should the LPA be challenged.

Of course, that's why it's best for all of us to arrange LPAs well in advance. I wish I'd realised that for the benefit of my own father, but I've had to learn the hard way.

 

[60schild]

A lawyer would charge up to £2000 to do this form but you really do not require one at all.

No solicitor with experience in this area should charge anything like as much as that for helping somebody to complete the LPA forms.

I agree that a lawyer isn't necessary, though, for people who are confident about filling in forms. Those who are less confident may consider approaching a lawyer to be money well spent, if they can manage it, because (as has been reported on here in the past) if the form is filled in wrongly then the OPG will refuse to register the LPA, and if the Donor has deteriorated in the meantime then it may be too late to start again.

 

[Mr_Angry]

Follow up action

Having considered the comments raised a formal complaint has been sent to SS and its complaints department. A request for a continuing healthcare assessment has also been raised and I am completing the forms for an LPA. I will be seeking two expert witnesses so if any one in the ***** region can offer recommendations please get in touch.

My father is going to tell social services that he is unhappy in the care home he is in at present with a view to see if he can be moved. As the SS have a limited supply of places he intends to object to all of them. May not work but at least it is better than becoming a vegatable in a place that does nothing for him and restricts his freedom.

 

[60schild]

Having considered the comments raised a formal complaint has been sent to SS and its complaints department. A request for a continuing healthcare assessment has also been raised and I am completing the forms for an LPA. I will be seeking two expert witnesses so if any one in the ***** region can offer recommendations please get in touch.

My father is going to tell social services that he is unhappy in the care home he is in at present with a view to see if he can be moved. As the SS have a limited supply of places he intends to object to all of them. May not work but at least it is better than becoming a vegatable in a place that does nothing for him and restricts his freedom.

Fantastic news, Mr Angry! I'm sorry you're going through this nightmare, but so happy to see that you're getting it all in hand.

The very best of luck to you and your father. Please do let us know how you're getting along, and don't hesitate to ask if you think anyone can help xx

 

[Mr_Angry]

SS playing hard ball

The SS have refused to give my father access to his mental capacity test that they claim to have done. The reason stated is that they do not have the authority to disclose information provided by the health care team involved in his assessment. Typical attitude I have come to expect from them.

 

[DeborahBlythe]

That's not very helpful. Can you apply to the NHS mental health team?

http://www.nhs.uk/chq/pages/1309.aspx?categoryid=68&subcategoryid=160