I want to break free

On the 13^th March 2017, the law commission published their long overdue report on Mental Capacity and the Deprivation of Liberty Safeguards (DoLS).  The report finally arrived a week after news broke of the death of Rusi Stanev, aged 61.  The ruling on Stanev v Bulgaria by the European Court of Human Rights in 2012 was a catalyst for change in UK social care law.  Just two years later Lady Hale referenced his case when she set the acid test to determine what would constitute someone being deprived of their liberty in landmark Supreme Court Ruling on the Deprivation of Liberty Safeguards, which has come to be known as Cheshire West.

The Cheshire West ruling was a wake up a call to adult social work, reminding the profession of its roots as an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people based on principles of social justice and human rights.  The ruling reminded social workers that the most important letter in the DoLS is the letter S – it standards for Safeguards.  The first of these safeguards is the role of Best Interest Assessor, a professional qualification which social workers have embraced in huge numbers post Cheshire West.

A common confusion is that the Deprivation of Liberty Safeguards scheme is not there to deprive a person of their liberty.  The DoLS scheme provides a set of legal safeguards on behalf of the person to protect them by ensuring their right to speedy judicial review against the agency who is depriving them of their liberty.  The role of social work and social care commissioning is not to wrap the person in cotton wool in the name of adult protection, but is to enable people to experience life in the same way as anyone else would. This is a hugely important turning point in the role of social work and social care commissioning.

Take Paul (names have been changed). Paul has a learning disability.  He was 17 when people first became really worried about him being a risk to himself and others.  Professionals decided that it would be in his best interest for him to be moved 100 miles away from his family for his own protection. Anyone can talk up risk, professionalise the risk and then transfer it onto a support plan. There are plenty of social care providers who are willing for a price to offer to mitigate the professionally imagined risk.  In Paul’s case the risk related to him having been seen once, 10 years ago, in a kitchen holding a bread knife.  No one ever asked if he had picked the knife up because he wanted a slice of bread.  10 years later, despite no further incidents having been observed, he was living a life with hardly any independence and very little contact with his family.  As Paul says, if he’d been in trouble with the police and ended up in prison, he would have been released home years ago.  It took a talented social worker, using the Mental Capacity Act to challenge the assumptions being made about Paul and start the long, slow process of working with Paul and the provider to lessen the restrictions on his life and reconnect him to his friends and family.  Possibly, over time and with support, he may finally live an ordinary life, free from services.

And then there was Mary.  Mary’s Saturday treat has been a cream scone every week for as long as her daughter could remember.  At 86 Mary had advanced Alzheimer’s disease which had led to her moving to live in a care home.  The care home staff were very worried about Mary’s love of cream cakes.  They called in the community matron who agreed with them and called in the dietician.  The dietician agreed that these were bad for Mary and wrote a long and detailed explanation of the risks associated with cream cakes which made clear Mary must not be allowed ever again to have one.  Mary’s daughter asked for help from her social worker who took the very sensible decision that in keeping with Mary’s previously known wishes and feelings the home should uphold her right to continue to make the decision which health professionals deemed unwise to eat a cream cake every Saturday for as long as Mary wanted to do so.

The Law Commission have recommended that the Best Interest Assessor role should be made even stronger through introduction of Approved Mental Capacity Professionals to be the safeguard of people’s rights and wellbeing. What greater opportunity can there be for all those social workers who came into the profession saying at their interview to get on the course that they wanted to make a difference?  The challenge is there to social work professionals to raise the quality of capacity assessments.  The bar in law is rightly low.  It’s our job to make sure it stays there and maintain people’s control over how their care needs are met.  After all, the only person who really knows what goes on in a care home or hospital at 3am when the lights are off is the person who experiences the hands on personal, intimate care or otherwise that care worker provide. As Professor Harry Ferguson has found in Children’s services – it is too easy for the person to become “invisible”, their voice unheard, their rights ignored as the social worker becomes overwhelmed by the complexity of the circumstances surrounding them.

Social workers are uniquely privileged, carrying a title protected in law, to access the person, their history and insist that other professions listen when they speak.  This is especially true when it comes to the person objecting – not kicking off, we all recognise that – but quietly resisting the attempts to persuade them that they can never go home but now must accept the decisions that professionals are making about them. Recognising, understanding and acting on objection is the sign of an outstanding social worker.  Objection still isn’t understood well enough.  A person could be objecting quietly but not be regarded as doing so because unless a relationship is built with the person, you might never learn that they feel resigned to their fate, afraid to raise their deep desire to go home, not wanting to upset their family.  Slow social work practice, based on relational practice is the answer here.  The more we recognise objection, search out and encourage people to be open and honest with us about their feelings, the more we can engage in mediation, advocating on their behalf to secure better outcomes. The success or otherwise of the Law Commission recommendations will ultimately turn on this.  Every morning Stephen Neary greeted the manager of his care home with the song – I want to break free – spotting objection and acting on it, is at the heart of safeguarding liberty.