‘…items and belongings…’ – a hoarding case at the Court of Protection

Stephen Martineau summarizes a recent case at the Court of Protection involving hoarding behaviour: AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39. With thanks to Neil Allen for alerting us to the judgment via this Tweet.

The NIHR Policy Research Unit in Health and Social Care Workforce, where Stephen is Research Fellow, recently completed a study of self-neglect and hoarding behaviour among older people and it has just commenced another study on the commissioning of decluttering services by local authorities. Both projects are funded by the NIHR School for Social Care Research. (2,294 words)

Introduction

This case concerned AC, a 92-year-old woman. She had been sharing her home (which she owned) with her son, GC, since her husband’s death eleven years earlier. GC had given up his job and had become his mother’s main carer. In February 2022 she was taken to hospital by emergency services and in March was discharged from hospital to a care home as a result of a best interests decision. There had been concerns about the unsanitary conditions at her home and their potential impact on her health and welfare.

The question to be decided in summer 2022 was whether AC should now return home for a trial period, receiving a package of care there. It was her wish to return home, while the local authority thought she should remain at the care home. We learn from this judgment (August 2022) that both AC and her son were diagnosed by a clinical psychologist, Professor Salkovskis, as having a hoarding disorder (among other conditions), and also that both have their own social worker.

The judge, HHJ Clayton, had already been managing the case for two years: there had been earlier applications to the Court of Protection by the local authority (and the judgment alludes to yet earlier proceedings that had ended in 2018). In August 2020, the local authority had applied for AC to be moved to a respite placement while the poor conditions at her property were addressed. More recently, it had sought an order that her son leave the property for the same reason.

Much of the difficulty of the case arose because of concerns around GC’s mental health. If AC were to return home, it was proposed that he would be the ‘second carer’ (after the care agency). Continue reading

Liberty, social care detention and the law of institutions

Stephen Martineau, Research Fellow at the NIHR Policy Research Unit in Health and Social Care Workforce at King’s College London, reviews Deprivation of Liberty in the Shadows of the Institution by Lucy Series (University of Bristol). Page numbers in brackets refer to the book, which was published in March 2022 (and is available for free). (2,642 words)

Introduction

One of the more familiar stories from recent UK history about the lives of people with longstanding serious mental illness or intellectual or cognitive disabilities is their move from large-scale institutional accommodation to living arrangements beyond the walls of such places. The extent of this ostensible deinstitutionalization is illustrated by the decline in hospital beds for ‘mental illness’, ‘geriatric’ patients and people with intellectual/learning disabilities—from over 200,000 in 1955 to under 20,000 in 2020 (Series, 2022: p.53). Much of this shift was to do with the closing of survivals of the Victorian era (which started out being called asylums, subsequently renamed mental hospitals) that took place through the second half of the twentieth century.

As Lucy Series describes in her book, Deprivation of Liberty in the Shadows of the Institution, these newer smaller-scale living arrangements may take the form of ‘quasi-institutions’ (residential care and nursing homes) or ‘quasi-domestic’ arrangements (‘supported living’, ‘independent living’, sheltered housing), or indeed ordinary homes.

Series describes this development as a passage from a ‘carceral’ to a ‘post-carceral’ era (after Unsworth, 1991). But in making the physical move away from institutions, to what degree have some less tangible aspects of the old institutional life been carried over to those new living arrangements, as far as these individuals are concerned? To what extent, Series asks, are they still living in ‘the shadows of the institution’?

This question was brought sharply into focus in the UK Supreme Court case of Cheshire West, the litigation that forms the dramatic fulcrum of this book. The court’s approach meant that its definition of deprivation of liberty applied to a much wider array of living arrangements than had hitherto been the case, extending to private homes, where family members were the carers (or custodians?) of the person concerned. It is the socio-legal ramifications of this move (which Series views as transgressive) that are the main concern of the book. To put it briefly and in human-rights terms, in its approach to concerns about liberty in the area of social care detention—under article 5 of the European Convention on Human Rights—the court seemed to set up a clash with a set of questions belonging more under article 8 (respect for private and family life), to do with the distinction between institutions and homes.

This review is split into five short sections: 1. Social care detention. 2. The acid test. 3. Liberty. 4. Home. 5. Out of the shadows? Continue reading

On best interests: values and participation in mental capacity law

Stephen Martineau is Research Fellow at the NIHR Policy Research Unit in Health and Social Care Workforce, King’s College London. (1,115 words)

At the British Academy earlier this month, Dr Camillia Kong (Birkbeck College) and colleagues presented their end-of-project findings on the place of values and participation in mental capacity law. As well as contributions from the research team, the day featured a group of international experts, three Speak Out Leaders from VoiceAbility, and it culminated in a panel made up of four senior former judges: Baroness Hale of Richmond, Sir Mark Hedley, Senior Judge Denzil Lush, and District Judge Margaret Glentworth.

Participation and values

The event coincided with the launch of the second of two films produced by the project. The first, from 2021, had addressed the importance of good communication with the person at the centre of Court of Protection proceedings and discussed some of the ways of enabling their involvement (see particularly the ‘role-play’ at about 22 mins in). Three contributors in the film, Speak Out Leaders from VoiceAbility, took part in a panel at the event. The new film, Making Values Matter in the Court of Protection, includes a remarkable ‘demonstration’ of the exploration of a person’s values by a barrister engaging with the person and their father (from about 9 mins in). By modelling one way that requirements in the best interests checklist in s.4 Mental Capacity Act 2005 can be met, it provides a corrective to any notion that a finding of incapacity in respect of a decision amounts to an ‘off-switch’ for a person’s rights and freedoms.* Continue reading

Is the legal tail wagging the social work dog?

Mary Baginsky, Senior Research Fellow at the NIHR Policy Research Unit in Health and Social Care Workforce, introduces the paper given by Martha Cover recently at the Unit. Dr Baginsky convenes the seminar series where the paper was presented.

We were delighted that Martha Cover led our latest seminar in the Contemporary Issues & Debates in Social Work Education, Research and Practice on 18 January 2022.  Martha is a very experienced child law barrister who has considerable experience representing parents and children in cases of serious injury and death. Until recently she was joint head of Coram Chambers.

Martha writes on this subject, and regularly gives television and radio interviews and has given evidence to parliamentary select committees.

She was legal aid barrister of the year in 2019 and has recently been given an honorary doctorate in Law by Queen Mary University of London.—Mary Baginsky

————————————–

Is the legal tail wagging the social work dog?

Martha Cover

Martha Cover

Martha Cover

What I do not propose to do in this talk is to enter into the debate about whether the “right” number of children are in care, or whether there are too many or too few – or whether they are in fact the “right” children. To set the scene, as of March 2021, there were 80,850 children in care in England. The great majority were the subject of section 31 care orders rather than voluntarily accommodated under section 20 Children Act 1989.

I want to travel upstream from that and ask the question: with legal processes and court requirements becoming more dominant, is there an unintended consequence that social work is now focussed from the start on court requirements, and proving the section 31 threshold? If that is right, then is there any room in frontline social work for open and supportive relationships with children and their families?

The idea for this topic germinated when reading some government research following the institution of the 26-week time limit for care proceedings, introduced by the Children and Families Act 2014.  In August 2015, the Department for Education published “Impact of the Family Justice Reforms on Front-Line Practice: The Public Law Outline”. The research examined the impact of the changes in the PLO on front line practice. It quotes a social worker:

“As soon as we have a case that we know may meet threshold, straight away we start doing pre-proceedings work- family group conference, viability assessments, more comprehensive chronology, exploring extended family members,…. doing any assessments that need to be done……” Continue reading

Toolkit for reflection on human rights in the context of social care

Caroline Green is Post-Doctoral Fellow at the Policy Research Unit in Health and Social Care Workforce, King’s College London. (709 words)

During the COVID-19 pandemic, the importance of human rights for people needing care and support in care homes or at home, their carers, families and friends became evident. Care home residents, especially people with dementia, were one of the groups who were and still are most severely affected by the virus, with thousands of deaths from a COVID-19 infection not only in England but many countries around the world. The need to protect people requiring care and support and to balance infection control – thus the basic rights to health and life – with the right to a private and family life and to social participation was but one of many examples of a human rights issue that we as a society had to face during this pandemic. Conversations around these topics are often difficult.

Human rights as enshrined in international and national law, notably the Human Rights Act, are directly relevant to people requiring care and support, service providers and care workers. Not only is every human being entitled to have his or her rights respected, protected and implemented but the English legal and regulatory system for care providers also makes them directly relevant in care settings. However, human rights are more than a legal concept. They are also a moral concept, which can help to build a social care system and determine the way care is provided. Human rights in social care is therefore a broad topic, with many different ways of approaching it in conversations, training and research. Continue reading

Letter from the European Parliament: Promoting Quality Social Services with the ESF Plus

Mary Baginsky is Senior Research Fellow at the NIHR Health & Social Care Workforce Research Unit at King’s College London. (611 words)

Dr Mary Baginsky

Dr Mary Baginsky

I was invited to attend an event (9 April 2019) at the European Parliament organised by the European Social Network (ESN) to discuss ‘Promoting Quality Social Services with the European Social Fund Plus (ESF+)’. The ESN has over 125 member organisations in 33 European countries and supports the sharing of knowledge, practice and policies between social services across Europe. The event was hosted by Sofia Ribeiro, a Portuguese MEP and member of the Employment and Social Affairs Committee in the European Parliament. The focus was on how the ESF+, amounting to 120 million euros in the coming period, could be put to best use to support the work of social services across Europe. Even though there are UK members of ESN none were present at the meeting. Continue reading

CQC emphasises the importance of human rights for high quality care home services

Caroline Green is a PhD student at King’s College London. (362 words)

The Care Quality Commission (CQC), England’s care service regulator and quality inspector, is emphasising the centrality of human rights and equality when providing high quality care in care homes and other care services. Human rights are the rights we all have because we are human beings. They are legally enshrined in the Human Rights Act 1998 and the Equality Act 2010.

Andrea Sutcliffe, CQC’s Inspector-in-Chief, recently explained at CQC’s Human Rights and Equality Conference in February 2018 what role human rights play for CQC’s regulation and inspection of care homes. She said, ‘Human rights thread through all our key-lines of enquiry. It informs the judgement that we make when inspecting care services and is one way that the CQC can emphasise the importance of human rights, raise the profile and make sure that the people are being treated the way that they should.’ Continue reading

Older People & Human Rights

Dr Joan RapaportJoan Rapaport reports from the 9th Annual Joint Conference of Age UK London, the Social Care Workforce Research Unit and Making Research Count. (1,789 words)

The conference, held on the Guy’s Campus of King’s College London, was chaired by Jo Moriarty, Deputy Director of the Social Care Workforce Research Unit, and attracted a capacity audience. Speakers’ presentations are available on the SCWRU conference webpage.

Human Rights Act: overview of current changes: Caroline Green, PhD student, Social Care Workforce Research Unit

Whilst human rights have been around for hundreds of years both globally and in Britain, Caroline acknowledged that our understanding mostly relates to post World War II developments. The European Convention on Human Rights, drafted in 1950, contains numbered ‘Articles’ each of which protects a basic human right. The European Court of Human Rights, based in Strasbourg, rules on cases brought under convention from the 47 signatories. Continue reading

Let’s Talk – Care Homes and Delayed Discharge

Bev EvansNorman CrumpBev Evans and Norman Crump, both of Lancaster University Management School, report from a recent meeting where participants discussed the transition from hospital to care home. (913 words)

According to the National Audit Office (2016), between 2013 and 2015, official delayed transfers of care rose 31 per cent and in 2015 accounted for 1.15 million bed days – 85 per cent of patients occupying these beds were aged over 65. Since 2010, waits for beds in nursing homes increased by 63 per cent. Across Morecambe Bay University Hospitals NHS Foundation Trust (MBUHT) waiting for a care home place can be a significant cause of delay.

In early October, Cumbria Registered Social Care Managers’ Network, Kendal Integrated Care Community (ICC) and MBUHT convened a special ‘Let’s Talk’ discussion group which brought together local care home managers, social workers, hospital discharge coordinators, ward staff and nurse practitioners from the community. The aim of the meeting was to explore how the transition from hospital to a care home could be improved. ‘Let’s Talk’ is a specially facilitated session delivered by King’s College London, Lancaster University, Dignity in Dementia and the South Lakes Registered Social Care Managers Network. Meetings are designed to enable participants to see issues from each other’s perspectives and to afford time to critically reflect on a particular ‘wicked issue’. Continue reading

Data and Debate – reflections on the SSRG Annual Workshop

Caroline Norrie, Research Fellow at the Social Care Workforce Research Unit in the Policy Institute at King’s, was at the Social Services Research Group Annual Workshop this week. (801 words)

This year’s Social Services Research Group (SSRG) Annual Workshop, held at the London School of Economics (LSE) on 15 April was a particularly thought-provoking event. Entitled ‘Evidencing Service Improvement for Vulnerable Children and Adults’, the workshop featured an expertly chosen group of speakers whose presentations stimulated animated discussion from the floor. With the Care Act coming on stream and the increased drive for integration, participants, who were predominantly social care managers with responsibilities for data and organisational performance, enjoyed a great opportunity to discuss service re-figuration and its measurement. Continue reading