Working in social care with the elderly is likely to mean that there will be occasions when you will be required to assist the coroner. Deaths will inevitably occur whilst providing care in residential and nursing homes and in domiciliary care in circumstances where the Coroner may need to investigate.
The Guardian has today highlighted the tricky issues regarding dementia patients and sex.
With the onset of dementia, residents of care homes are likely to lose legal capacity and with that the ability to consent to sexual activity. However the onset of old age and dementia does not mean the desire for sexual activity and physical relationships disappears. It is also recognised that positive physical relationships are beneficial to an elderly person’s mental health and well-being.
In addition, this is of course a delicate subject for the families of residents to deal with. The article in the Guardian today highlights a case study of an elderly couple who had moved into a care home together. The couple’s adult children became disturbed by their physical relationship and a decision was made for them to live on separate floors within the home. This resulted in a lot of upset for the couple with them displaying more challenging behaviours.
The Mental Capacity (Amendment) Act 2019 received Royal Assent on 16 May 2019 and the Deprivation of Liberty Safeguards (DoLS) will be replaced with the Liberty Protection Safeguards (LPS). The DHSC has confirmed that the intention is for the LPS system is to come into force on 1 October 2020.
Under the new LPS, just as with the DoLS, there is no statutory definition of deprivation of liberty and it is given the same meaning as it has under Article 5(1) of the European Convention on Human Rights (ECHR). Guidance is to be given in the LPS code of practice about the type of arrangements that would give rise to a deprivation of liberty. Progress is being made and the final draft of the Code is expected to be prepared by Spring 2020.
The LPS will authorise deprivations of liberty only (Article 5) and will not authorise interference with or breaches of Article 8 ECHR (right to private and family life).
The acid test for what restrictions constitute a deprivation of liberty will continue to be whether a person is under ‘continuous supervision and control and not free to leave’, as per the Supreme Court ruling in P v Cheshire West  UKSC 19.
What has changed?
- The LPS apply to any setting (and will include supported living, private and domestic settings, unlike before) so authorities will no longer need to apply to the Court of Protection for individuals not in a care home or hospital.
- The LPS will be extended to all those aged 16 or above (DoLS only applied to those aged 18 or over).
- A responsible body will be able to authorise arrangements that give rise to a deprivation of liberty (in any setting or more than one setting):-
- Where the arrangements are in an NHS hospital this will be the “hospital manager” (the trust or health board).
- Where the arrangements are mainly in an independent hospital, the responsible body will be the “responsible local authority” in England and the equivalent health board in Wales.
- In cases of NHS continuing health care, the relevant clinical commissioning group or health board.
- In all other cases the responsible local authority.
- Before a responsible body can authorise the arrangements, the following three conditions must be satisfied:-
- The person lacks the capacity to consent to the arrangements.
- The person has a mental disorder (as defined in section 1(2) of the Mental Health Act 1983.
- The arrangements are necessary to prevent harm to the cared for person and proportionate in relation to the likelihood and seriousness of harm to the cared for person.
- Before arrangements can be authorised the responsible body must consult with defined individuals to try and ascertain the cared for person’s wishes or feelings about the arrangements.
- A pre-authorisation review must be carried out by person who is not involved in the day-to-day care or providing treatment to the person.
- If there are any challenges/objections then an Approved Mental Capacity Professional will be appointed provide an additional level of scrutiny to make the process more workable and proportionate.
- Authorisation can have effect immediately or up to 28 days after.
- Unlike DoLS, under the LPS authorisation can be renewed. Initial authorisation will be for up to 12 months, another 12 months thereafter and then for up to three years and measures for reviewing authorisations are to be maintained, provided that the authorisation conditions continue to be satisfied.
- The responsible body must arrange a programme of regular (as well as statutory) reviews.
The Court of Protection will continue to have jurisdiction to hear any challenges, including whether the LPS apply to the arrangements, whether the authorisation conditions are met and the duration of the authorisation. The court can also vary or terminate the authorisation or direct the responsible body to vary the authorisation.
It is inevitable that there will be an increase in the number of applications in the care home setting to which the new LPS regime will apply and the impact will be significant. Care homes will need to implement transitional arrangements for current DoLS authorisations and familiarise themselves with the LPS, the code of practice (once drafted) and the additional responsibilities.
In circumstances where the arrangements are wholly or partly carried out in a care home, the responsible body will have to decide whether to arrange the necessary assessments or whether the care home manager should do so. The responsible body can delegate tasks in relation to renewal to a care home manager in relation to care home arrangements.
The responsible body/care home manager must ensure that the detention arrangements do not go beyond the scope of the authorisation. The Law Commission’s proposal to introduce a new tort of unlawful deprivation of liberty actionable against private care providers has not been taken forward but the government has taken the view that the tort of false imprisonment should provide an adequate remedy, by way of civil claim, against private care providers responsible for the deprivation. It is likely that this will be revisited as such cases arise.
Written by Jane Lang and Aliyah Hussain at BLM
Due to a severe shortage of NHS mental health beds in England, the NHS has been left with no option but to pay private institutions such as the Priory increased sums to provide residential rehabilitation each year.
“The NHS is paying private firms an “eye-watering” £181m a year to look after people with serious mental health problems in units often hundreds of miles from their homes.” – The Guardian.
The CQC has today released a review of oral health and dental care provided to those in care homes. The report concludes that this is poorly implemented in care homes. The review is based on 100 visits to different care homes by dental inspectors and oral health specialists.
There are specific NICE (National Institute for Health and Care Excellence) guidelines to cover dental care for persons living in residential care but in the majority of cases these were not being followed. Residents generally had their oral health assessed upon admission, but often care home staff were not aware of the NICE guidelines and had not had specific training on oral health. More worryingly, over half of the care homes surveyed had no policy to promote oral health, and nearly three quarters of the care plans reviews did not cover oral health or only partly covered it.
The CQC comment in the foreword to the report highlights the fact that the elderly of today generally are more likely to retain their teeth than earlier generations. Good oral care is essential for those in care homes to reduce pain and reduce the risk of malnutrition. Oral care was also often not joined up meaning that when emergency dental treatment was required, the homes would call a GP, or 111, or send the person to A&E – thereby placing a strain on already overworked services.
The care sector should carefully consider this report with a view to future policies and management of residents’ oral health otherwise this may be an area that residents and families focus upon in terms of claiming for damages.
The CQC’s report can be found here: https://www.cqc.org.uk/publications/major-report/smiling-matters-oral-health-care-care-homes
Written by Jennifer Johnston at BLM
A very enjoyable evening yesterday at the National Care Association Summer Reception hosted by Howdens Insurance brokers. We hear a lot of negativity around care services, so it was lovely to spend an evening celebrating all the incredible work that is performed in the care sector.
We heard an interesting address by Caroline Dineage, Minister of State for Health, including a mention of the long-delayed Green Paper on social care – which isn’t going to be published any time soon. The Green Paper is intended to explore the issue of how social care is funded by recipients and consider a range of proposals including a more generous means test, a cap on lifetime care charges and tac-free withdrawals from pension pots. When it is finally published, it will simply set out a range of recommendations for further consultation so any reforms to the current system will be even further down the line. During her address, the Minister also repeated her previous words of caution that, when published, the Green Paper will not solve all the challenges of social care.
Ahead of its annual conference, the GMB Union has released figures based on Freedom of Information Requests showing more than 6,000 attacks on care workers by violent residents in the last five years.
The Freedom of Information request was made by the GMB Union to the HSE in respect of attacks reported to the HSE. Of those attacks, over 5,000 resulted in care workers having to take over seven days off work.
In publicising these statistics, the GMB notes that this figure of over 6,000 attacks on care workers is probably not necessarily representative of what care workers face on a daily basis – as these attacks reported to the HSE will be the ones only deemed serious enough to report.
Publicity surrounding these figures has stated that these high levels of attacks are symptomatic of understaffing in the care sector.
Further information can be found here: https://www.theguardian.com/society/2019/jun/09/6000-residential-care-workers-suffer-violent-attacks
Written by Jennifer Johnston at BLM