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Mental Capacity

pam56

Registered User
Jul 2, 2021
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0
Am I right thinking (after what I have read) that for any decision/meeting etc there has to be a mental capacity test applied.
Reason I ask is that my Mum had an assessment done by SW for LA. On the assessment (which I didn't know about) she says that she had a face to face meeting with Mum. She then goes on to say that Mum has no mental capacity (she doesn't) she based this on an old capacity test done by someone else months previously.
As I have LPA I thought that I had to consent & also sign it off (according to LA web page) none of this happened. So basically SW has ignored all the MUSTS in the acts/LA rules etc etc.
Anyone come across this please and what did you do?
 

Grannie G

Volunteer Moderator
Apr 3, 2006
74,626
0
Kent
I`m not sure what you mean @pam56

When I had a POA for my husband , he signed for it during the process while he had capacity.

At a later stage, his consultant decided he had lost capacity and it was then he advised me to register the POA.
 

MartinWL

Registered User
Jun 12, 2020
1,279
0
Am I right thinking (after what I have read) that for any decision/meeting etc there has to be a mental capacity test applied.
Reason I ask is that my Mum had an assessment done by SW for LA. On the assessment (which I didn't know about) she says that she had a face to face meeting with Mum. She then goes on to say that Mum has no mental capacity (she doesn't) she based this on an old capacity test done by someone else months previously.
As I have LPA I thought that I had to consent & also sign it off (according to LA web page) none of this happened. So basically SW has ignored all the MUSTS in the acts/LA rules etc etc.
Anyone come across this please and what did you do?
Like @Grannie G I am not sure what you are getting at here. However here are a few basics.

Mental capacity has to be assessed for each and every decision from buying a pencil to re-writing a will. Each decision is separate. There is no requirement for an attorney to be involved in or sign off every assessment, although by the nature of things it will often be the attorney who is deciding whether she has capacity or not, especially if the attorney is also involved in care. It would be unworkable if care home staff had to refer to the attorney for every small decision like which jumper to wear today. However financial decisions are for the person with power of attorney for finance and property to make. Other people cannot make those decisions. Similarly health decisions should be referred to the attorney for health if possible - obvously not possible in an emergency.

It does not look as if the social worker here has done anything wrong unless the social worker has made a decision on behalf of the patient that was one the attorney ought to have made. You have not told us what decision was being considered so without knowing that I cannot comment on it. If this was a decision about where she should live then of course the attorney should be involved but the local authority, represented by the social worker, will have to have a say in it if they are providing the funding for it. There might be some negotiating to do but of course whoever holds the purse strings has the greatest say.

In this case everyone seems to agree that your mum doesn't have capacity for many decisions at all, if any, both the old and recent assessments and your own view are all in agreement. Perhaps she can decide small things for herself.

If you are in a dispute about a specific decision why not post details of the issue here and we can try to help? Remember that there is no such thing as "has/has not" got capacity across the board. If she can decide whether to have tea or coffee then she has not lost capacity totally.
 

Palerider

Registered User
Aug 9, 2015
2,734
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North West
Capacity does not have to be assessed for each and every small decision. The role of the LPA is to act in the best interests of the person they are LPA for and nothing more. Lack of capacity or abscence of it is best not assessed by an LPA due to culpability in any decisions the LPA then makes especially around big decisions. Capacity is very variable in people with neurocognitive disorders and capacity should always be presumed or the the benefit of the doubt given as per the Mental Health Act unless otherwise proven -i.e. the GP makes an assessment and decides that capacity is lacking or absent. Most people who are LPA's will know where capacity is lacking as main carers over time and make appropriate moves to support the person when beginning to have problems with making decisions. Any big decsions at this stage may require some form of assessment i.e. making last minute plans, deciding on where they live or big financial decsions. Where there is doubt it is always best to get a second opinion, but in the first instance capacity is always assumed until proven otherwise. Where there is a grey area then best interests can be applied so long as the decison is justifiable.

 
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pam56

Registered User
Jul 2, 2021
32
0
Sorry for the confusion, here goes
I read this online
Care Act 2014 c23 Part 1
9Assessment of an adult's needs for care and support
(5)A local authority, in carrying out a needs assessment, must involve—
(c)any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult's welfare.
and
Mental Capacity Act 2005 Part 1 Section 4
(7)He must take into account, if it is practicable and appropriate to consult them, the views of—
(c)any donee of a lasting power of attorney granted by the person, and

I have LPA for Health & Welfare
and I was not even aware that Mum was having an assessment done. She has advanced dementia and has failed the Mental Capacity Test 100% every time she has had to have one done. The SW says that Mum consented to it and she had a face-to-face meeting to complete the assessment - Really!!

I also read that the Needs Assessment must be agreed and signed off by both parties and that a copy of this must be kept in her file and a copy given to her- None of this happened again SW doing as she likes!!
 

Palerider

Registered User
Aug 9, 2015
2,734
0
North West
Sorry for the confusion, here goes
I read this online
Care Act 2014 c23 Part 1
9Assessment of an adult's needs for care and support
(5)A local authority, in carrying out a needs assessment, must involve—
(c)any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult's welfare.
and
Mental Capacity Act 2005 Part 1 Section 4
(7)He must take into account, if it is practicable and appropriate to consult them, the views of—
(c)any donee of a lasting power of attorney granted by the person, and

I have LPA for Health & Welfare
and I was not even aware that Mum was having an assessment done. She has advanced dementia and has failed the Mental Capacity Test 100% every time she has had to have one done. The SW says that Mum consented to it and she had a face-to-face meeting to complete the assessment - Really!!

I also read that the Needs Assessment must be agreed and signed off by both parties and that a copy of this must be kept in her file and a copy given to her- None of this happened again SW doing as she likes!!
If you are LPA for welfare then they must include you in the process, because that is your role as LPA -best interests. If you don't agree with the assessment then you need to raise it and say that plainly and take it to your SW's manager. Capcity assessment is not always conducted and even when it is it can be carried out incorrectly. Relying on an old capacity assessment is not valid, because any decsions now need to be made on an assessment of capacity in the now.
 

pam56

Registered User
Jul 2, 2021
32
0
thanks palerider that is what I thought. From day 1 they haven't included me in anything although they dsy you can come to the MDT meeting, next thing I jbow I get an email saying "at our MDT meeting" I am not a physic so how on earth do I know they are having one without being invited.
They also changed my Mum's Doctors with not so much as a phone call etc. She has been with them for over 65 years and we had implicit trust in them. These new Doctors have stopped my Mum's diabetic tablet, her blood pressure tablet and her water tablet saying that "they are of no benefit" Really! she has taken them for the last 10 years or so so why stop them now...is it because she is considered of no benefit! I really cannot fathom it out.
 
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MartinWL

Registered User
Jun 12, 2020
1,279
0
@Palerider is right to highlight the need for the local authority to consult with the attorney or other carer, that is correct. But it is wrong to say that "Capacity does not have to be assessed for each and every small decision. " It is fundamental in the 2005 Act that capacity is assessed on a decision-specific basis. A person can have capacity for one decision but not another. There isn't an exemption for small decisions but obviously you don't have to keep assessing capacity over and again for small decisions of the same sort. I am not suggesting carrying out a formal assessment every time a person is asked if they want tea or coffee.

It is *always* wrong to say "Mr Bloggs doesn't have capacity" or "Mrs Bloggs does have capacity". That is meaningless unless in the context of a specific decision. You might perhaps say that there are no decisions of any importance for which the person has capacity as a generalisation. This is something that a lot of people seem to get wrong - it isn't all or nothing and a mental capacity test can only relate to one decision not all decisions.

I disagree that the attorney should not make decisions on capacity. In many cases the attorney is a family member who has far greater knowledge of the PWD than anyone else. The fear of being held responsible for a wrong decision is understandable but when you take on the role of attorney you are accepting quite a responsibility anyway.

It certainly isn't the prerogative of a GP to determine capacity - if anything it is a legal question rather than a medical one. The 2005 Act does not specify who makes decisions and this does lead to a lot of anxiety and confusion and I guess lots of people shy away from deciding and prefer to get someone else to do it like a doctor or a social worker but professionals don't have any superior right to decide on capacity. It is essentially the person who has to implement the decision who decides and that may well be the attorney.

I think in the context of dementia it is reasonable for a social worker to assume that if a person did not have capacity in the past for a decision then that person does not have capacity now for a similar decision. We know that dementia only gets worse not better although there may be day to day fluctuations.

The issue in this thread is really about whether the local authority is consulting @pam56 properly and it would appear that they are not, if this is about a decision that @pam56 should be involved in such as a needs assessment to determine where the PWD should live.

Perhaps in this thread we have been a bit confused because as far as I know we still do not know what the decision was that the original post was about.
 

pam56

Registered User
Jul 2, 2021
32
0
Martin WL
Thank you for that advice. I agree with you.The decision was aout where she should live which I think is quite a pretty big dcision in my book. The whole crux of the matter is in a nutshell is that the SW has overidden any LPA as have others which has ended up with Mum being in a totally unacceptable home. When Mum was in the Mental Health Unit they did reports/capacity etc. In each & every report it was stated that Mum had highly complex needs and needed "a highly specialised home" In fact the SW stated that Mum needed a Cat 3 and her needs were very high.
They found her an excellent home that was a mixture of mental nursing & carers with on-site Doctor & Physcologist. This home (I'll call it Home A) was the sister home of another which had an excellent rating. As the home was new they had to be registered with the CQC & on LA's DPS System. When Mum was dischargeded they had registered with the CQC but not LA's DPS system. SW took it to the meeting for them to sign off funding but not being registered it was refused. The panel, whoever they are told the SW to ring Home B and get her a place there. Home B is a residential home, never been a Cat 3 and they do not have any "specialised" services rather they can just lock them in and the carers have training in ordinary dementia. Mum has no stimulous, not even allowed in the garden (she is on a top floor) her room is dark & she is terrified of the dark so ill not go in amongst other bad practices such as dementia patients being left alone in the dining room where they sit all day. I had no choice in where she went, wasn't consulted about anything including the CHC checklist which they did wrong, the needs assessment done by SW for LA which states I should have been consulted and signed it off. They are saying they cannot move her just like that. Htting a brick wall with them. Funnny they say they can't move her "just like that" yet SW, again behing my back, has contacted another home owned by this same company to ask for a placemnt. I thought you had a choice under the new legislation. I have found a wonderful home, near me, that has a Reg Mental Nurse on duty 24-7. Visited the place and is was perfect, ground floor, nice rooms, activities, access to garden etc but SW is saying it wouldn't meet Mum's needs,,,,really it has tons more facilities than the home she is in now so obviously that one def isn't meeting her needs.

I have played nice up to now but I am taking that head off and putting my other head on, going to escalate this to the very top if I have to.
 

pam56

Registered User
Jul 2, 2021
32
0
Martin WL
PS I am not asking to determine capacity I just thought that before she had an appointment face to face with SW her capacity should have been assessed. I just wanted to be included in that discussion as I think I know Mum better than anyone and would know what she wanted, had she had capacity..
 

canary

Registered User
Feb 25, 2014
16,076
0
South coast
Is your mum dependant on Local Authority funding @pam56 ?

If so, then I think the panel you mentioned is the LA funding panel. What happens if someone is LA funded is that the SW assesses them and recommends to the LA panel that the person needs this care and the panel decides whether to fund it. If the panel wont fund it then the SWs hands are rather tied. I suspect that there are a lot of SWs who think that someone should be in a care/nursing home, but the LA panel decides not to fund it.

If your MIL is self-funding, then you can just go ahead and move your mum, but if your MIL is not, then you have to work with the SW and LA. In order to meet legal requirements, the LA only has to find one care/nursing home that will accept what the LA is willing to pay in fees. If they cant find anywhere that will meet their needs, then the LA will have to increase their budget, but either way, you may not get any choice. The home that you prefer may not be happy to accept the LAs fees.

I would concentrate on trying to show that other homes will not meet her needs. This means that you will firstly have to find out exactly what her needs are. I would also find out why the SW doesnt think that your preferred home wont meet these needs. The fact that the SW is looking at another home suggests to me that they dont think the home your MIL is in is the right one for her either. It may be, of course, that although your preferred home has lots of facilities they may not actually have the wherewithall to meet your mums underlying needs. There are, unfortunately, quite a lot of homes like that - they have lots of fancy looking things that look good in a brochure and are designed to appeal to relatives, but the actual care may not be so good. It depends where they want to spend the funds! But you wont know whether this home is like this or not without further investigation.
 

pam56

Registered User
Jul 2, 2021
32
0
Canary

My Mum gets her care under s117 aftercare. Her funding was discussed & enorsed it then went to be signed off by a JWP panel who couldn't sign it off as the home was new and not yet registered with the LA. So it was agreed to fund the first place.

When it said it wouldn't fund until registered it suggested to SW that she rang the second care home (which Mum is in) which didn't have same facilities as the first one in fact it was poles apart.
 

pam56

Registered User
Jul 2, 2021
32
0
also I found this Canary. Sorry I am not shouting it is just how I typed it originally and have just copied and pasted it for you

MHA – SECTION 75 PERMITS THE SECRETARY OF STATE TO MAKE REGULATIONS THAT ALLOW A S:117 PATIENT TO EXPRESS A PREFERENCE FOR A PARTICULAR TYPE OF ACCOMMODATION WHERE THE ACCOMMODATION IS BEING PROVIDED BY A LOCAL AUTHORITY DISCHARGING THE S.117 DUTIES

REGULATION 4 ENABLES AN ADULT [OVER 18] WHO QUALIFIES FOR CARE & SUPPORT TO EXPRESS A PREFERENCE FOR PARTICULAR ACCOMODATION IF THE ACCOMODATION IS OF THE FOLLOWING TYPE:

CARE HOME ACCOMMODATION

AND ALL OF THE FOLLOWING CONDITIONS ARE MET:

THE PREFERRED ACCOMMODATION IS OF THE SAME TYPE THAT LA HAS DECIDED TO PROVIDE OR ARRANGE

SUITABLE FOR THE PERSON’S NEEDS

IT IS AVAILABLE

THE PROVIDER AGREES TO PROVIDE ACCOMODATION TO THE PERSON ON LOCAL AUTHORITY TERMS

THE DIRECTIONS ARE INTENDED TO ENSURE THAT WHEN COUNCILS WITH SOCIAL SERVICES RESPONSIBILITY MAKE PLACEMENTS IN CARE HOMES OR CARE HOMES WITH NURSING CARE THAT, WITHIN REASON, INDIVIDUALS ARE ABLE TO EXERCISE GENUINE CHOICE OVER WHERE THEY LIVE.

The home I am looking at meets all four criteria too
 

pam56

Registered User
Jul 2, 2021
32
0
Is your mum dependant on Local Authority funding @pam56 ?

If so, then I think the panel you mentioned is the LA funding panel. What happens if someone is LA funded is that the SW assesses them and recommends to the LA panel that the person needs this care and the panel decides whether to fund it. If the panel wont fund it then the SWs hands are rather tied. I suspect that there are a lot of SWs who think that someone should be in a care/nursing home, but the LA panel decides not to fund it.

If your MIL is self-funding, then you can just go ahead and move your mum, but if your MIL is not, then you have to work with the SW and LA. In order to meet legal requirements, the LA only has to find one care/nursing home that will accept what the LA is willing to pay in fees. If they cant find anywhere that will meet their needs, then the LA will have to increase their budget, but either way, you may not get any choice. The home that you prefer may not be happy to accept the LAs fees.

I would concentrate on trying to show that other homes will not meet her needs. This means that you will firstly have to find out exactly what her needs are. I would also find out why the SW doesnt think that your preferred home wont meet these needs. The fact that the SW is looking at another home suggests to me that they dont think the home your MIL is in is the right one for her either. It may be, of course, that although your preferred home has lots of facilities they may not actually have the wherewithall to meet your mums underlying needs. There are, unfortunately, quite a lot of homes like that - they have lots of fancy looking things that look good in a brochure and are designed to appeal to relatives, but the actual care may not be so good. It depends where they want to spend the funds! But you wont know whether this home is like this or not without further investigation.
Visited the home and spoke about funding. They are quite happy with La amount & 1-2-1 amount awarded by CCG. I chose this home on 2 recommendations and also it compared better in terms it could offer
1st Home
SPECIALIST CARE CATEGORIES BIPOLAR/MANIC DEPRESSION CHALLENGING BEHAVIOUR
CARING FOR COMPLEX CONDITIONS: • MENTAL HEALTH • DEMENTIA Nurses & phsiotherapist in attendance

2nd Home
(Residing now) DEMENTIA, CARING FOR ADULTS OVER 65 YRS

3rd Home (The one I wanted) TWO DESIGNATED WINGS;********* FOR PEOPLE LIVING WITH DEMENTIA AND ****** FOR PEOPLE WITH COMPLEX HEALTH CARE NEEDS. Staffed by Nurses RGM & Carers, Physiotherapist


So as you can see Homes 1 & 2 offer more or less the same whilst the home she is in is just residential
 

canary

Registered User
Feb 25, 2014
16,076
0
South coast
I can quite see that home 2 (the one she is in) is not suitable for someone on 117 funding as they usually present with challenging behaviour.

Reading the precis that you have posted it does look to me as though there are significant differences between home 1 and home 3, although I realise that this may not tell the whole story. Looking at it, it suggests to me that home 3 deals more with complex physical needs and home 1 deals more with behavioural and mental health needs. I am particularly concerned that home 3 does not mention that they specialise in challenging behaviour, nor do they say they have dementia nurses.
 

pam56

Registered User
Jul 2, 2021
32
0
3 rd Home (fromCQC
********could support up to 23 people with complex needs associated with their dementia, such as behaviours that could be challenging to themselves and other people.

We saw that the staffing structure of both units had recently changed due to staff movement and a recognition that a registered mental nurse (RMN) was required to oversee the people who lived in *********

The people who lived on ******** had more advanced dementia care needs and required more input from general nurses. There were two nurses on ******each morning during the week, which included the unit manager

A unit manager, a registered general nurse (RGN), was in post for *******

2nd Home (resident) Residential Home no nures etc just carers no specailist care etc

As well as advanced complex dementia with challenging behaviour Mum also has diabetes, Stage 3 Kidney disease, Blood Pressure & Asthma.
 

pam56

Registered User
Jul 2, 2021
32
0
3 rd Home (fromCQC
********could support up to 23 people with complex needs associated with their dementia, such as behaviours that could be challenging to themselves and other people.

We saw that the staffing structure of both units had recently changed due to staff movement and a recognition that a registered mental nurse (RMN) was required to oversee the people who lived in *********

The people who lived on ******** had more advanced dementia care needs and required more input from general nurses. There were two nurses on ******each morning during the week, which included the unit manager

A unit manager, a registered general nurse (RGN), was in post for *******

2nd Home (resident) Residential Home no nures etc just carers no specailist care etc

As well as advanced complex dementia with challenging behaviour Mum also has diabetes, Stage 3 Kidney disease, Blood Pressure & Asthma.
I agree with you s117 aftercare is for people who have been sectioned under Section 3. This what I found
In R (Mwanza) v Greenwich LBC and Bromley LBC [2010] EWHC 1462 (Admin), the High Court held that accommodation is a "common need" for all people and that therefore, in order for accommodation to be an aftercare need it had to be "accommodation plus", i.e. specialist enhanced accommodation that meets a need that arises from a person's mental disorder. Essentially, the crux is that the person's need for accommodation is over and above every human being's common need for shelter and housing. This means that the accommodation needed to have additional features to it and that those additional features needed to arise from or meet a need from the person's mental disorder – over and above a need for basic shelter.

For example aftercare accommodation might include:

residential accommodation that is specifically designed to care for the needs of a person who has been detained under s.3 MHA and who has left hospital; or

caring residential accommodation that provides intensive therapy and treatment

R (Tewodros Afework) v LB Camden – [2014] MHLR 32

Points Arising:
Services were only “after-care” under s117 Mental Health Act 1983 if they were provided as the direct result of the reason for detention under the Act; ordinary accommodation could not meet this test, which required enhanced accommodation that was a substitute for or extension of the hospital environment.

The home she is in is just residential and cares for people who have dementia. Says nothing about complex needs etc
 

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