Deprivation in Essex

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Mr CP was a 91 year old man living alone. He had early dementia, but coped at home with assistance. His friends alerted the County Council to concerns that he was vulnerable to financial exploitation. His niece and nephew told the court that they believed CP’s best interests necessitated residential care; not living at home. His niece believed that he would settle in residential care if his friends were not encouraging him to resist leaving his home.

As a result of the concerns of financial exploitation, the Essex CC social worker visited CP on 1 May 2013 and concluded that he lacked the capacity to make decisions about his care, residence and finances. (The court later found that her assessments of his ability to retain, use and weigh information were ‘unclear’ and that she made no record of his wishes and feelings). The following day, despite his reluctance and distress, he was taken to a locked dementia unit. This transfer was not lawful, lacking authorisation. The court found that ‘it is by no means clear that CP lacked capacity at this time’. When the first DOLS authorisation was eventually put in place two months later, restrictions on Mr CP’s contact with his friends, and his attendance at church, were imposed.

Whilst an agency employee of the ECC concluded that CP did have capacity to make a decision regarding his accommodation, this was contradicted two days later by the social worker. Despite an independent best interests assessor’s conclusion that CP had capacity and should be allowed to go home, the same social worker continued to find that he lacked capacity over the ensuing nine months. During this period, the DOLS authorisation expired in October 2013, again rendering his detention unlawful.

Throughout the whole of CP’s detention, he expressed a consistent wish to return home. Yet despite the assessments concluding that he did have capacity, and that returning home was in his best interests, the ECC did nothing to enable him to do so. He was thus detained unlawfully against his wishes for 17 months. By the time of the court hearing to extract him from this detention, only his nephew and niece believed that it was in CP’s interests to remain in residential care. The ECC, the official solicitor, the independent nurse specialist and his friends all supported his return home, with a care package that would support his needs. Mr CP was restored to his home, and substantial damages awarded.

Unsurprisingly, the court was scathing of CP’s management by the County Council. One of the triggers for his removal seemed to have been the concern about the risk of financial abuse. The judge could not understand why his removal and detention in these circumstances was thought to be reasonable or proportionate; or in his best interests. ‘Action against the perpetrators would have been preferable to the removal of the victim’.

If CP had been similarly admitted to UHS, he would have been found to be competent after a correct and complete assessment of his mental capacity. He would have been allowed to go home with support in place. Alternatively, if (as the social worker had done) we had found initially he lacked capacity to make decisions relating to residence, alerted by his friends and relatives vehement disagreement as to his best interests, we would have sought DOLS authorisation. On the facts, the DOLS assessors would then have concluded that he had the capacity to return home, despite his relative’s protestations. The DOLS mechanism protects patients from having their rights abused. Providing we employ clinical acumen to ensure that information given to us is scrutinised, ensuring that it is being given in good faith, DOLS serves patients well.

Robert Wheeler
Department of clinical law