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Identifying & dealing with Safeguarding issues & avoiding Court of Protection litigation

Our team has been dealing with safeguarding adults at risk cases for over 13 years, but it is only since the introduction of the Care Act 2014 in April 2015 that safeguarding has been on a statutory footing. Health and Social Services do not always make it clear that a safeguarding ‘alert’ has been raised. Each local Adult Social Care Team or Clinical Commissioning Group (CCG) deals with safeguarding cases using local policies, all of which should be in line with the Care Act 2014 and statutory guidance.

Raising a safeguarding alert on behalf of your client, whether the client is ‘P’ (the adult lacking capacity) or a concerned relative or friend, is an important task to be handled carefully. You may be appointed as a Professional Attorney or Deputy for an incapacitated adult and realise that their care package or care plan is inadequate. Or you may become concerned about the quality of their care, be it provided by a relative or agency worker.

Psychological abuse, care planning & financial assessments: managing complicated cases

Two of my recent safeguarding cases covered health and welfare issues as well as property and financial concerns. Mrs D, in her 70s, had been placed in hospital following a second stroke. After her first stroke, her son and proposed attorney (my client), arranged for her flat to be adapted so that she could return to live in her own home. However, her second stroke caused additional mobility and psychological issues. This meant she had to spend yet more time in hospital while her discharge plan was arranged. Social Services assessed Mrs D as requiring 24-hour care, but the family and Social Services could not agree on the appropriate care setting. The Social Worker felt Mrs D should move into a care home. My client knew that this was not what Mrs D wanted and felt it would not be in her Best Interests. Social Services failed to undertake an assessment of Mrs D’s capacity to consent to share her personal information with her two adult children who were in the process of registering her LPA.

An Independent Mental Capacity Advocate had been appointed for Mrs D as had been placed under a Deprivation of Liberty Safeguard (DOLS). Hospital staff were aware of the devastating impact that the extended hospitalisation was having on her. She spent a lot of time crying and was distressed at not being allowed home. Mrs D made it abundantly clear that she did not want to remain in hospital.

When Mrs D’s DOLS expired, her DOLS assessor found that it was in not in her Best Interests to remain in hospital. Hospital staff agreed she could be safely discharged, but Social Services refused to complete either their care and support needs assessment or their financial assessment. Social Services continue to refuse to share Mrs D’s financial information with her son on the basis that Mrs D’s Lasting Power of Attorney (Financial) had not been registered at that point.

I presented my client’s views and his understanding of Mrs D’s past and present wishes and feelings to Social Services, who appeared to be trying to force Mrs D into a care home. Mrs D’s hospital discharge and care planning were mismanaged and Mrs D needed to be safeguarded against further emotional harm. The unauthorised deprivation of her liberty had to stop.

Following further correspondence with Social Services and further assessments, Mrs D’s care and support plan and her financial assessment were finally shared with her children on a Best Interests basis. Mrs D was given an opportunity to trial living in her own home, to see if she could adapt. Her return placement was agreed as a six-week intermediate care at home package for 24-hour care, seven days a week, without any charge to her. Her longer term care funding was then resolved.

Mrs D had spent months in hospital unnecessarily. Policies and protocols failed her. Social Services did not act in her Best Interests and did not improve her wellbeing. If it were not for Mrs D’s children and legal representation, she could now be unhappily living in a care home with no hope of living at home again.

Complex care funding cases & detention under the Mental Health Act 1983

Mrs R had been detained under s3 Mental Health Act 1983 due to a rare type of dementia. She had been the main carer for her husband who had advanced Parkinson’s disease. The couple had to be separated due to the risks that Mrs R’s challenging behaviour posed to Mr R’s health. I represented the couple’s daughter, Tina, now Mrs R’s Deputy. I established Mrs R’s entitlement to s117 aftercare funding. However, the more pressing issue was Mrs R’s discharge from the psychiatric ward. Tina wanted her mother to be given an opportunity to live safely in her own home. From the outset, Social Services were adamant that Mrs R would have to move into a secure residential care setting due to her challenging behaviour and cognitive impairment.

As the couple owned two flats in close proximity to each other, we managed to secure a 24-hour care at home package for Mrs R in the flat that Mr R did not occupy. This meant that Mrs R lived close to her husband. She did not have to move into a care home and it maximised her chances of living with her husband again in the future.

I raised a safeguarding alert against the care agency who had been caring for Mr R following his wife’s hospitalisation. Due to Tina’s concerns about the quality of that care, Mr R’s care package was transferred to the same specialist agency providing Mrs R’s care. This enabled the couple to see each other frequently while the agency managed the risks. The couple could maintain their relationship despite both their diagnoses and their having high level care and support needs.

Getting the right outcome – can it be done?

We manage negotiations with Health and Social Services regarding care packages and care plans. Decisions are being made by Social Services without properly applying the well-being principle. Instead they focus on commissioning. Not everyone can live in their own home when they have care and support needs, but the presumption should be that a person has the capacity to make their own decisions, despite their diagnosis. A person’s capacity should be enhanced whenever possible. What should be considered is their Best Interests, not purely what is preferable or cheaper from a commissioning point of view.

The underlying principle of the Care Act 2014 is to promote an individual’s well-being. This comprises: remaining as independent as possible for as long as possible; being allowed to continue living with a partner or spouse; having a choice regarding where they live. These are some of the rights and choices that everyone should have, but that some of the most vulnerable people in society are denied.

Health and Social Services are stretched, many teams are understaffed and some social workers feel under-trained. But when relatives or representatives are accused of ‘wanting too much’ or ‘being unrealistic’ about the provisions available for their loved ones or clients, something has gone wrong. Professional Deputies and Private Client Solicitors too are concerned about the lack of care and support that their own clients experience. The question to ask is whether you would put up with a certain situation yourself. When we ask that question, we are taking on a safeguarding role in a person’s life.

If you need expert community care law advice on safeguarding vulnerable adults and the Court of Protection, contact us today on 01273 609911, or email to find out more.

Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UB
T: 01273 609 991

Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.

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