So, it is a given that we love the Mental Capacity Act. We love the fact that when it is administered properly, it ensures people who lack capacity to make specific decisions benefit from safeguards, which simultaneously enable the person to exercise their rights, such as challenging the assessment/Best Interest decision. As well as ensuring these safeguards, the MCA also enables the state to sign off and sanction proportionate support and protection to mitigate against a particular situation. We also love the fact that when someone has the capacity to make a specific decision (such as whether I have the capacity to choose to write this blog) the MCA doesn’t really apply. If the decision doesn’t break the law or infringe on anyone else’s rights, personal decision making is essentially no-one else’s business. When a decision to act in a certain way does break the law or infringe on others we rely on criminal justice to ensure rights. So whether this blog is good (unlikely) or bad (more likely) it doesn’t matter in terms of whether or not we can make the decision to write it. We have capacity to make the decision and as such we can get on and write pretty much what we choose to.
We were asked a question last week that comes up quite often, particularly around this time of year when its getting close to Christmas, the days are darker and the weather is turning bitterly cold. The question is, whether in assessing that someone has the capacity to make a specific decision to accept or decline care and support, do social workers use the non-rebuttal of principle one (i.e. assume capacity) or use capacity assessments that people are able to make the decision, to justify a lack of action on behalf of the social worker and simply walk away, close the case & move on just because the capacitous person is telling us that they do not want us involved?
We touch on this issue in Social Work, Cats & Rocket Science in most of the case examples in the book. All those of us who were involved with Elsie in ‘Someone To Safeguard’ are mindful of the fact that ignoring rights, or striving to find a lack of capacity through over assessing and/or setting the bar artificially too high or over-medicalising what are seemingly environmental situations in the pursuit of safety, often at the price of happiness such as in Elsie’s case, is simply wrong & needs to be vehemently guarded against by excellent social work practitioners. However that is not to say that a balance doesn’t sometimes need to be struck between turning on our heels, doing an about face and walking out of someone’s life because they have capacity to make a decision that they don’t want help and genuinely working to keep a possible foot in the door for when state support may be required either through the person changing their mind, accepting the consequences of their original decision may have been detrimental or where, in the case of someone going on to lose capacity to make the decision, a best interest decision to put in place treatment and support is necessary. Our answer to the question as to whether we do just walk away if a capacious person who has care and support needs but who is in an extremely risky situation tell us to do so is unequivocally yes and we absolutely and unashamedly work uphold the persons right to reject undue state interference. However that in itself is so very often not the end of our work – its often just the start what Ruth Allen at the British Association of Social Work refers to as ‘the messy stuff’ and this is where the best social work excels rather than disappears.
When the door is slammed in our faces, everything we learnt at university, through our experience, through learning from theory, through working alongside exceptional colleagues (both in social work and in partnership with allied professions) is used to maintain & enhance relationships wherever possible, whilst absolutely keeping the right side of Article 8 ECHR & in upholding our values, becomes critical. For us, in rejecting the notion that adult social workers are merely brokers of care packages, stepping up to the plate and demonstrating our unique skills in trying to ensure a lifeline for people becomes vital, essential even. This is where adult social work is at its most vociferous challenge and where the assumption that social work is inherently helpful, is at its most tested. Can we forge a relationship with a capacious person in a risky situation, who is telling us in no uncertain terms where to go, whilst at the same time not only uphold their right to reject state intervention but be the leading exponent of their demand to reject support within our multi disciplinary settings and where we are under significant pressure from genuinely worried family members and other professionals? The answer is that we can and we do. Only last week, in looking at preparations for Christmas, it was staggering how many people we support who do not accept statutory help in the form of prescribed care or Direct Payments, but where social workers are working to keep channels of engagement open, often in the most difficult of situations.
Every social worker seemingly has a story about a person who made a decision to reject us and what the outcome was. In Elsie’s case we panicked and sought immediate medical intervention before ultimately probably erroneously using mental health legislation and watched her go from the home she had lived happily in for 80 years into hospital & care home & die within months of first slamming the door in our face. With David, a man dying of cancer and battling with alcoholism, we saw him reject all state intervention whilst tipping whisky into his drip feed and choosing the death he clearly advocated. We did what we could for David and we were commended in court afterwards for upholding his rights. However we could not do anything to stop him and his capacatous decision making, all we could do is respectfully uphold his dignity in choosing how his life ended. But Elsie and David are both extremes. Most people social workers are supporting range between the extremes, and where we are hanging on by our social work fingertips whilst capacious people make a series of decisions that worry, upset, confuse and sometimes scare the lives out of people. Hanging on in there, sometimes to ensure that other agencies adhere to the persons Article 8 rights, is often the only social work intervention possible. Social Workers who understand the inherent power in their role and recognise that legislation is at their fingertips but should not be applied to a situation where a person is free from mental ill health and has the capacity to make the most challenging and worrying decisions, or simply where there is no causal link between the persons impairment and the decision to be made, battle to uphold rights using only their skills as communicators to remain involved in the face of rejection and adversity are the social workers who take our profession to another level. These are the social workers who recognise that the Mental Capacity Act has no get-out clauses for people with particular conditions and the generality of the Act in that it applies to us all in the exact same way. These are the social workers who do not bend the rules and the assessments so that it may act as a bypass for these most painful and seemingly hopeless situations and in doing so they protect all our human rights. Yet crucially these social workers keep the door ajar for the capacious person and their families and remain involved with the state but accept a different kind of involvement. This is social work resilience and keeping the hope alive at its best and it requires the very best of us all. It means we genuinely keep the channels of communication going, make the call to concerned relatives and not to leave it to them to worry about their loved one on their own but we instead share the concern, properly hold the risk whilst also enabling it as it is lawful & understand & uphold the decision someone is making, whilst remaining resilient & positive that things may be better and help may be accepted. These are the social workers who have the connectivity to families and communities and networks of support, if not to the person themselves. Its social work but its often three, four, five times removed from the person.
So this is to all the social workers out there who are somehow managing to do this work, particularly over Christmas and in the winter. We know this stuff is not rocket science but upholding rights whilst holding risk is really bloody hard. The pressure to misapply legislation, agree that ‘something must be done’, buckle and dodge the complaint that is going to be made about you for doing your job correctly and go on to find a lack of capacity to relieve everyone of the burden of autonomous decisions that scare us rigid is real.
So for all the social workers who are worried about people over the winter and who are out about doing things like posting cooked food through letterboxes of the unkempt house in the terrace block, with the hole in the roof and where we know there’s no electric or water in there but there is a person, who at this moment in time isn’t prepared to speak to you but might, just might accept the food parcel – thank you for hanging on in there. For all the social workers out there using resources to buy things like mobile phones for people and hoping someone will accept it as a lifeline to ask for support whilst accepting that they might not and that this may lead to more risk – thank you, you are doing exactly what you are educated to do and paid to do. For all the social workers who are hanging on, staying involved, living with the complaints and accusations of doing nothing whilst actually doing the exact opposite, or those picking up the phone or visiting the concerned family members to see how things are progressing and look at where, if anywhere, we can collectively make a difference to the person that they love – thank you, that’s often all anyone can do and your involvement despite the obvious frustrations of those who love the person, is what you need to do. And for all the social workers who use every skill they have to keep the light on and keep whatever contact in place they can and can pull off the seemingly impossible of being the best exponent of human rights on one hand in enabling the persons decision to be heard, whilst not disappearing, not using capacitous decisions as an excuse to disappear but as the start of something really very skilled – thank you.
Many thanks for reading our blogs throughout the year and for those who bought the book. We are privileged to work with some amazing people, including social workers, both in our Local Authority and nationally, other professionals, providers of support, academics, students and especially the inspirational community of people who follow the blog. Many thanks also to our wonderful guest bloggers.
On behalf of Last Quango in Halifax may we wish everyone a peaceful, joyful Christmas and a wonderful 2020.
Walk out to winter, swear I’ll be there
Chance is buried just below the blinding snow