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I think the fight is finally over - fil doesn't have capacity

lori107

Registered User
Nov 4, 2014
45
We were so disappointed and disillusioned with ss and there ridiculous idea that fil had capacity to go back to his flat that we paid for an independent legal company to conduct a full mental capacity assessment. SS said he could go back to his flat with carers 4 times a day but not at night, even though we had a care report from the manager of the care home confirming that he requires 24 hour care and needs help going to the toilet. He is registered blind (macula degeneration ) has alzheimers and poor mobility since falling and breaking his hip in October. We challenged the social worker and even though herself, the dementia nurse and the care home all agreed he needed to stay in the care home because he was a danger to himself and other people, she said he had capacity to decide where he wanted to live. He can't even decide what he wants to eat, let alone where he lives. SW decided as there were concerns after the first meeting about him that there would be another one arranged for the following months - agreed for 6th April. She did not take into account any of the care home's report or our concerns which annoyed us hugely.
Anyway, we paid for this independent assessment to be done and she visited him on Good Friday. We have now received an 11 page assessment, which is incredibly in depth and thorough. She concluded the report with the following :

It is my professional opinion that Mr G is unable to adequately weigh up the pros and cons of a decision to return to his own property as he is unable to acknowledge the potential risks which might arise for him as a result of such a decision and therefore take such risks into account in weighing up the pros and cons of this decision.would recommend that the care home will need to apply for a Deprivation of Liberty Safeguards Authorisation. If there is a resultant welfare dispute then this may need to be resolved in the Court of Protection.

We have written to SS to advise them that we will not require any more meetings to be held regarding my fil as hubby has poa for health and welfare and, as he is deemed not to have capacity, it in his father's best interest to remain in the care home. We have also written to the home requesting they apply for a DOLS.
The assessment was done by someone much higher up than the SW so we are hoping now that they will leave us alone. He is also completely self funded so it makes no difference to them where he lives.

We hoping that SS will accept the report we have had done and allow him to settle in the home.
 

Kevinl

Registered User
Aug 24, 2013
4,771
Salford
Hi lori
I'm not clear about something, if he's self funding then just ignore the social worker and do what you like, however, if the care is LA funded then they could withdraw the funding and what happens then?
As the report says if you disagree you can go to the CoP and get a legal judgement but this will take time and cost money although I don't doubt you'd win in the end.
In the short term I'd go to the top at social services and copy your MP in on what's happening, fortunately (for me) our local MP is the shadow Minister for Older People, Social Care and Carers and a mention of her name makes the LA shut up.
We also have Mind in Salford (on the link below) who supply and advocacy service and they will attend meeting with you or liaise with the LA to make sure what is supposed to happen does happen and although it is LA funded it is totally separate from the NHS or social services, maybe there's something similar in your area.
K
http://www.mindinsalford.org.uk/advocacy/
 
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Chemmy

Registered User
Nov 7, 2011
7,591
Yorkshire
I don't understand why the SW has a say either. My mum and MIL both went into care homes, self-funding, with no involvement from social services whatever.
 

lori107

Registered User
Nov 4, 2014
45
Hi lori
I'm not clear about something, if he's self funding then just ignore the social worker and do what you like, however, if the care is LA funded then they could withdraw the funding and what happens then?
As the report says if you disagree you can go to the CoP and get a legal judgement but this will take time and cost money although I don't doubt you'd win in the end.
In the short term I'd go to the top at social services and copy your MP in on what's happening, fortunately (for me) our local MP is the shadow Minister for Older People, Social Care and Carers and a mention of her name makes the LA shut up.
We also have Mind in Salford (on the link below) who supply and advocacy service and they will attend meeting with you or liaise with the LA to make sure what is supposed to happen does happen and although it is LA funded it is totally separate from the NHS or social services, maybe there's something similar in your area.
K
http://www.mindinsalford.org.uk/advocacy/
Hi Kevin,

Although fil is completely self funded we had to get an assessment done be SS as he was demanding to go back to his flat. The care home said we needed to get the assessment from ss to confirm that he lacks capacity otherwise they couldn't keep him there against his will. The independent assessment has now been done by the head of safeguarding in our county as we were unhappy with the way ss were undermining us and totally disregarded anything we said. We knew he didn't have capacity, the SW assessed him without a Dementia nurse being present with her( because she couldn't find the time) and even though she was very unsure of his safety and welfare and admitted he should remain in the care home she seemed to think it was fine for him to go back even if he killed himself in doing so.
There will be no LA input so as hubby has poa the people that have done the assessment have advised us that we do not need ss involved anymore and have advised the care home to apply for the DOLS.
 

Kevinl

Registered User
Aug 24, 2013
4,771
Salford
Thanks lori, I can now see the bigger picture. SS wanted him to got back to the flat as he wanted to and still (in their view) still had capacity and the rest of the world disagreed with that decision even though he was self funding so no cast to them.
Well in a way I admire SS for sticking out for his rights as an individual even though it appears they had their head buried up their...sorry head buried in the sand is what I meant to say.
I've asked this question on here before but who gets to decide?
If I have a social worker say I lack capacity can a doctor over ride this, can a solicitor get me to sign an LPA as ""at the time" I can retain the information even if I'm deemed not to have capacity by a doctor. All of these things happen but who has the final say?
Anyway I'm glad you seem to have finally worked it all through lori in spite of all the...let's say stuff...in between.
K
 

d4109125

Registered User
Mar 25, 2016
54
Thanks lori, I can now see the bigger picture. SS wanted him to got back to the flat as he wanted to and still (in their view) still had capacity and the rest of the world disagreed with that decision even though he was self funding so no cast to them.
Well in a way I admire SS for sticking out for his rights as an individual even though it appears they had their head buried up their...sorry head buried in the sand is what I meant to say.
I've asked this question on here before but who gets to decide?
If I have a social worker say I lack capacity can a doctor over ride this, can a solicitor get me to sign an LPA as ""at the time" I can retain the information even if I'm deemed not to have capacity by a doctor. All of these things happen but who has the final say?
Anyway I'm glad you seem to have finally worked it all through lori in spite of all the...let's say stuff...in between.
K
Not a pleasant situation, but where there is a disagreement and if for example, the LA still believed an individual did have capacity, then a Judge at the Court of Protection would make the final decision, weighing up the evidence, on the balance of probabilities. Remember, a person is judged to have capacity unless it is proved otherwise, a bad decision is not always an incapacitated decision. Capacity depends on the subject matter, one can be incapable of making one decision, but not another. A person can technically have arrangements put in place to make a home safe, in essence, supplying what the care home is, that could be 24/7 care. Just because a person is in a care home can't guarantee safety, people still fall, self harm etc.... It's about reducing risks, fir the LA resources play an important role.
 

lori107

Registered User
Nov 4, 2014
45
Not a pleasant situation, but where there is a disagreement and if for example, the LA still believed an individual did have capacity, then a Judge at the Court of Protection would make the final decision, weighing up the evidence, on the balance of probabilities. Remember, a person is judged to have capacity unless it is proved otherwise, a bad decision is not always an incapacitated decision. Capacity depends on the subject matter, one can be incapable of making one decision, but not another. A person can technically have arrangements put in place to make a home safe, in essence, supplying what the care home is, that could be 24/7 care. Just because a person is in a care home can't guarantee safety, people still fall, self harm etc.... It's about reducing risks, fir the LA resources play an important role.
I really don't see why ss would challenge us over the assessment. We have been told by the company that arranged for the assessment to be done that if it was challenged ss wouldn't win. Everybody knows he doesn't have capacity, he can only tell you he wants to go home but he can't tell you how he would look after himself, he doesn't even know his address when asked, just says my lovely home.
We just hope it's now over and then he may finally learn to settle.
The assessor said he cannot 'understand the information that is relevant to the decision they want to make' or 'weigh up the information'
I'm going to send the private Assessment report to everyone who is relevant to his case.
 
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mancmum

Registered User
Feb 6, 2012
400
We had the possibility of this during respite

We decided in advance to handle it by saying 'yes of course you can go home' do YOU want to call a taxi or do YOu want to go on the train'. Come and have a cup of tea while you think about it....needless to say he stayed in the care home. He'd been given a choice and he would have forgotten it by the time he got back to the lounge.

Appreciate the advice from others but sometimes its useful to know other ways of dealing with this.

I'd be interested in knowing roughly how much the private report cost if you feel like sharing it.
 

Witzend

Registered User
Aug 29, 2007
4,291
SW London
Do I understand that a single social worker made the original decision? Is this usual? Wouldn't someone need particular qualifications to make such a decision? From all one reads and hears of SWs, they are not necessarily very clued up about dementia.
 

looviloo

Registered User
May 3, 2015
463
Cheshire
We decided in advance to handle it by saying 'yes of course you can go home' do YOU want to call a taxi or do YOu want to go on the train'.
We were in a similar situation with my dad, and this is the way we thought to handle it too... in fact, if dad had continued insisting on 'going home' I would have had no choice but to back away from the situation and refuse him any practical help (in his own best interest). There was no way I would ever knowingly put dad in an unsafe environment - his old home, in this case.

In the end, we obtained a lengthy written report from the psychiatrist who assessed him and diagnosed the dementia, and she explicitly says that he has trouble with decision making and understanding the implications of going home. She also confirmed that he didn't (in her opinion) have the capacity to drive, which was another bug-bear. But it was a long, hard road to get that far, and in the meantime we had SS suggesting that he go home with 4 visits, modifications to the house and so on. And we were close to applying for DOLS. Dad's also self funded.

It's a dreadful situation for everyone involved... highly stressful, and sometimes it felt like there was no-one to turn to. We had POA but there seemed like no clear route to a decision about dad's future. Awful! I'm so glad you've stuck to your guns, lori107, and got the best outcome. Hopefully life will be a bit smoother from now on :).
 
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Pinkys

Registered User
Nov 13, 2014
157
South of England
This is an interesting thread.

I remember talking to an excellent Admiral Nurse, who said that there have been court cases where the safety of the person was deemed of less importance than the extreme distress they were exhibiting in a CH. I get that totally, and probably agree with it. Best interest argument. But in many cases, including my MiL, the 'I want to go home' is triggered by visits and while no one from 'home' is there, the person is calm and content. An NHS psychiatrist did the MCA, for us, and the DoLs was in place. Like others on this thread, we were very anxious until it was all signed off.

I am pleased that SS take the trouble to make sure, as best they can, that anyone is in the best place they can be, bearing in mind that all options have serious downsides!
 

lori107

Registered User
Nov 4, 2014
45
This is an interesting thread.

I remember talking to an excellent Admiral Nurse, who said that there have been court cases where the safety of the person was deemed of less importance than the extreme distress they were exhibiting in a CH. I get that totally, and probably agree with it. Best interest argument. But in many cases, including my MiL, the 'I want to go home' is triggered by visits and while no one from 'home' is there, the person is calm and content. An NHS psychiatrist did the MCA, for us, and the DoLs was in place. Like others on this thread, we were very anxious until it was all signed off.

I am pleased that SS take the trouble to make sure, as best they can, that anyone is in the best place they can be, bearing in mind that all options have serious downsides!
I received confirmation this morning that the SW accepts the private Assessment result and is confirming the home now need to apply for the DOLS. We also don't think the SW was right in assessing him on her own, I don't believe she was supposed to do it without the dementia nurse but because she couldn't go she did it on her own. However, when we challenged her she then returned last Friday (without our knowledge ) with her Boss in tow but she hasn't bothered to share the results of that meeting with either. I don't mind sharing the price with you all, it wasn't cheap by any means but an 11 page assessment is far better than the SWs one paragraph. The cost was £500 which we think is worth every penny. It is basically the entire meeting minuted in huge detail. The assessor had to step in twice to stop him falling over and once to prevent him pouring hot tea all over himself The thing is Pinkys, you are right, he shows no distress in the CH, the manager said he hasn't mentioned anything about going home for weeks and only mentions it when we visit. Although he got in a state when we visited yesterday and told us we disgusted him and he didn't want to see us again, he calmed down, and they were able to distract him with dinner and his bedtime routine., He is well fed and cared for, he loves the beautiful garden and he 'has' to be in charge of playing the triangle during entertainment visits as he's so good at it he's proudly informed us.
Apparently with DOLS he will be assessed once again for mental capacity but we've been told they will rely heavily on the assessment we have had done. So know we have to wait for them to do that. We really hope this will be the last hurdle. I can't take the stress.
 
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looviloo

Registered User
May 3, 2015
463
Cheshire
But in many cases, including my MiL, the 'I want to go home' is triggered by visits
This was my experience too, and I kept reminding myself of this during the worst times. Unfortunately, the I-want-to-go-home conversation was triggered once in front of the GP, who visited dad in the care home to discuss DNAR. The doctor asked where dad would like to be in a few years time (silly question!) and dad replied immediately 'at home' and went on to describe his old house and how he'd managed by himself etc etc. I kept quiet. Afterwards the CH manager, who had also been present, was obviously shocked since she'd never heard dad talk so passionately about it before. I'd heard it hundreds of times, of course, and it was then that I realised it really was me that triggered it...

We really hope this will be the last hurdle. I can't take the stress.
My husband used to say, in an effort to reassure me, that it wasn't just about dad... there was a bigger picture and other people to consider. Yes, dad was everyone's primary concern but the stress on friends and family was enormous and decisions needed to be balanced. So dad's 'wish' to be home was over-ridden by his 'need' to be in a safer place and the family's 'need' to lessen their own daily stress and burden of worry. If it's any consolation, my dad is in a much better frame of mind now. But it has taken nearly a year. The upheaval was enormous, but his yearning for home has grown weaker and this tricky subject comes up less and less :). He hasn't forgotten home... he has just slowly settled into a new routine.

Good luck, and I hope for everyone's sake that this will be your last major hurdle!
 

Chemmy

Registered User
Nov 7, 2011
7,591
Yorkshire
My husband used to say, in an effort to reassure me, that it wasn't just about dad... there was a bigger picture and other people to consider. Yes, dad was everyone's primary concern but the stress on friends and family was enormous and decisions needed to be balanced. So dad's 'wish' to be home was over-ridden by his 'need' to be in a safer place and the family's 'need' to lessen their own daily stress and burden of worry.
Wise man, your husband ;):)
 

lori107

Registered User
Nov 4, 2014
45
This was my experience too, and I kept reminding myself of this during the worst times. Unfortunately, the I-want-to-go-home conversation was triggered once in front of the GP, who visited dad in the care home to discuss DNAR. The doctor asked where dad would like to be in a few years time (silly question!) and dad replied immediately 'at home' and went on to describe his old house and how he'd managed by himself etc etc. I kept quiet. Afterwards the CH manager, who had also been present, was obviously shocked since she'd never heard dad talk so passionately about it before. I'd heard it hundreds of times, of course, and it was then that I realised it really was me that triggered it...



My husband used to say, in an effort to reassure me, that it wasn't just about dad... there was a bigger picture and other people to consider. Yes, dad was everyone's primary concern but the stress on friends and family was enormous and decisions needed to be balanced. So dad's 'wish' to be home was over-ridden by his 'need' to be in a safer place and the family's 'need' to lessen their own daily stress and burden of worry. If it's any consolation, my dad is in a much better frame of mind now. But it has taken nearly a year. The upheaval was enormous, but his yearning for home has grown weaker and this tricky subject comes up less and less :). He hasn't forgotten home... he has just slowly settled into a new routine.

Good luck, and I hope for everyone's sake that this will be your last major hurdle!
I absolutely agree with what you say. I know his wishes are to return home but when we ask him how he would manage on his own he tells us how he can walk out and get his own shopping, , push a trolley, turn the oven and cook. All of these were things he could do but are now an impossibility, something sadly that he doesn't understand. I think ss are so keen to do right by the pwd they don't look at the bigger picture, ie everyone works, my poor health, my daughter with ME, I can't drive, he can't see, he can't carry anything, he needs help in the bathroom, I feel this private Assessment was worth every penny. SS have now said they have cancelled the meeting and the care home are applying for a DOLS. He WILL BE SAFE.
thanks for your support and comments. If anyone wants information re the company we used for the mental capacity assessment I wouldhighly recommend TSF CONSULTANTS.
 

Witzend

Registered User
Aug 29, 2007
4,291
SW London
My mother was in her CH a long time before anyone got around to a DOLs, and now and then some acquaintance (not CH staff) would tell me that if she was demanding to go home (as she did on and off for quite a while) then the CH - a secure specialist dementia - could not make her stay.

Fine, I said more than once. Except for the minor matters of a) who was going to take her (her house was 60 miles away) since certainly none of the family was going to - by then she absolutely needed 24/7 care.
And b) even if anyone else did, she had no house keys and we were certainly not going to provide any.
 

lori107

Registered User
Nov 4, 2014
45
My mother was in her CH a long time before anyone got around to a DOLs, and now and then some acquaintance (not CH staff) would tell me that if she was demanding to go home (as she did on and off for quite a while) then the CH - a secure specialist dementia - could not make her stay.

Fine, I said more than once. Except for the minor matters of a) who was going to take her (her house was 60 miles away) since certainly none of the family was going to - by then she absolutely needed 24/7 care.
And b) even if anyone else did, she had no house keys and we were certainly not going to provide any.
Yep, I'm with you on that Witzend, at least we have done everything we can to keep him safe.
 

little shettie

Registered User
Nov 10, 2009
218
Well done Lori on sticking to your guns. I have had to fight SS on many levels over the last 8 years regarding first Dad and now Mum. They beggar belief at times. It is traumatic and stressful and I have zero tolerance or regard for them! Hope you can now move on and get Dad settled again and get yourself well. XX
 

RedLou

Registered User
Jul 30, 2014
1,162
My husband used to say, in an effort to reassure me, that it wasn't just about dad... there was a bigger picture and other people to consider. Yes, dad was everyone's primary concern but the stress on friends and family was enormous and decisions needed to be balanced. So dad's 'wish' to be home was over-ridden by his 'need' to be in a safer place and the family's 'need' to lessen their own daily stress and burden of worry.
Thank you so much for posting this. I know it intellectually but to see it written down so concisely is an enormous help -- I am still coming to terms with my father's increasing hostility to me, caused by my 'failure' to get him home, and the subsequent guilt, months after his death.
 

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