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Martin Searle Solicitors

Is It Right To Lose Your Dignity When You Need Care?

The Care Act 2014 comes into effect from April 2015 and puts safeguarding vulnerable adults on a much firmer legislative footing. Research and our community care law team’s casework experience, indicate that safeguarding concerns are not only raised against close relatives of the vulnerable adult, but often also against carers, whether these are home care workers or hospital and care home staff.

With the pressure on adult social care budgets and the report from the Association of Directors of Adult Social Services released last month,  the reality is that care packages at home are being cut. Many vulnerable adults may feel that it is not safe for them to remain at home as a result of receiving only basic provision; or they may be told by Social Services that there are too many risks in remaining at home. The individual or their family can then be faced with the kind of heartbreaking decision that the Panorama programme looked at earlier this year, when the individual cannot continue to afford to be cared for at home and is effectively left with no option but to go into a care home setting.

The lawfulness of Social Services decisions to substitute a cheaper method of care and support – despite the resulting absolute loss of dignity – was one of the issues relevant in the case of McDonald v The UK, which went through the European Court in May 2014. Ms McDonald was not incontinent, but due to physical disabilities, required help overnight to use the commode. Social Services would save £22,000 per year by supplying incontinence pads and reducing her night-time care. The ECHR decided that there had been a breach of her right to respect for private life. The breach was due to the way in which the decision had been reached by Social Service (without adequate reassessment or care planning) rather than because of the decision itself to require Ms McDonald to rely upon incontinence pads instead of night-time care.

I am getting increasing client queries about cases which seem to fall somewhere between safeguarding concerns and bad care. Perhaps we shouldn’t distinguish between either of them and we should all be taking a view that care provision which removes someone’s dignity and independence is in itself a safeguarding concern?

I have recently been told a story about a lady who I will call Jean; she and her family have asked me to make the circumstances of her case known. Jean has mental capacity in every aspect of her life. She has physical health problems which mean that she can’t do as much for herself as she used to. She fell a few weeks ago and broke her hip; she had a hip replacement operation and has no concerns about her time spent in hospital. She wanted to go home but it was deemed to be unsafe and she was persuaded by Health and Social Services to go to a care home on a temporary basis for a period of “re-enablement”. The placement was in what appeared to be a high quality private care home and cost almost £1,000 per week. This was being funded through Intermediate Care Provision. It wasn’t really what Jean wanted but she agreed to go along with it on medical advice.

Jean was discharged from hospital quite swiftly and had with her only the nightdresses that she had used at hospital. Her family were planning to bring her day clothes to the care home. When the carers found that she didn’t have any day clothes, even though she told them that at home she preferred to stay in her nightdress, they simply said that “wouldn’t do” and they dressed her in clothes belonging to another resident. Jean is continent but needs help to get to the commode or toilet after the hip operation. One afternoon, she asked the carers to help her to get to the toilet because she needed to pass a bowel movement. She was instructed to soil herself in the incontinence underwear that had been provided, even though she is not incontinent.

Jean is in her early 80’s. She is a proud woman and she has mental capacity. She is normally assertive but her recent experiences have left her less so. She has an assertive, caring and dedicated family and they made urgent arrangements for Jean to return home. If this is happening to someone who is supported and who has capacity, it leaves the question of what is happening to those who have neither family support nor the mental capacity to challenge inadequate care? Safeguarding is everyone’s business.

 

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Martin Searle Solicitors

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Founded in Brighton in 2004, Martin Searle Solicitors is an award-winning law firm providing specialist legal advice and support in employment law for employers and employees, as well as expert guidance and legal advice in community care law.

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