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Martin Searle Solicitors

Case Study: Solicitor Mediates In Safeguarding Dispute

Summary

How Cate Searle, a community care law specialist in Brighton, helped a son to work with Social Services to achieve the best result for his father in a safeguarding dispute.

The situation

Peter is in his 80s and lived alone after the death of his wife. His only close relative is his son, Ben, a health professional who voiced strident views about what he believed his father needed. Peter needed a period of respite care after a fall. He was physically frail and had some memory impairment, but continued to voice a wish to go home. Ben and the Social Worker clashed repeatedly and neither seemed willing or able to listen to the other. In one exchange, Ben somewhat emotionally accused the Social Worker of wanting to put his dad in a home so that Social Services could sell his house and take the money. The Social Worker raised a safeguarding alert suggesting that Ben had an intention to financially exploit his father by insisting that he return home to be cared for in order to “save the inheritance”; and objecting to the fact that Ben was relying on an unregistered Enduring Power of Attorney (EPA). The family home is of modest value, and while Ben acknowledged that he would be reluctant to see it sold to fund his father’s care, he was also able to explain that he wanted to do what was right for his dad and get him home.

A decision was made that Peter lacked mental capacity to decide where he should be cared for, and a temporary stay in the care home was agreed to allow evaluation of Peter’s abilities and a proper risk assessment. Ben fully agreed with Social Services that the temporary stay was sensible. He visited his father regularly, and took him home from time to time, including on overnight stays. When the agreed temporary period expired, Ben was worried that the Social Worker had not been in contact to discuss the outcome of the assessments and what should happen next. He contacted her to say that his dad was at home on an overnight stay and that they would like a meeting. The Social Worker responded by raising a further safeguarding alert, stating that she had not given permission for Peter to have home leave and that Ben was placing his father in danger. She stated that the fact that the EPA was still unregistered and that Ben had not paid anything towards his father’s care fees were additional causes of concern. There was no formal legal restriction preventing Peter from spending time at home. Ben was extremely worried about what would happen to him as a result of the safeguarding alerts, not least as he feared that there might be an impact upon his work.

What Martin Searle Solicitors did

It was clear to Cate Searle that the relationship between the Social Worker and Ben was such that there would be no opportunity for them to work in partnership to address Peter’s best interests. Ben was advised to register the EPA and that once a financial assessment had been properly undertaken, he should be using his father’s money to pay the assessed income contribution towards the temporary care home placement. Cate made it clear to Social Services that a failure to pay care fees when no financial assessment had taken place was not a safeguarding matter; and that a delay in registering the EPA pending a decision on capacity was also not a safeguarding matter. Cate asked Social Services to allocate an alternative Social Worker to Peter to avoid an ongoing clash of personality.

The result

Ben and the new Social Worker are now working cooperatively together to determine what is best for Peter in the long term. Ben realises that his father cannot live on his own, even if this is what his father wants, and they are considering a live-in carer.

Effective support – not necessarily from a solicitor – can play a vital part in ensuring that decision-makers in Health & Social Services and the family members properly follow the Mental Capacity Act and Guidance and that they make decisions which are firmly centered on what the vulnerable adult would want if they had capacity to make the decision themselves. It is vital that the process is transparent and – of course – that it demonstrates a commitment to arriving at the least restrictive option for the vulnerable adult.

If you are concerned about a safeguarding investigation and need expert advice, our specialist community care team can help. Contact us to find out more.

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