We nurses aren’t perfect. We generally spend our time trying to sort out problems that we didn’t cause. That’s more than most people do. It’s more than the majority of our critics.
But no matter how hard we try, sometimes we fail. Sometimes we don’t fail but people place such unrealistic expectations on our practice, make such unrealistic demands of us that we face criticism, insults, even threats of violence for not living up to the demands of others.
People can disregard our efforts, they can slander us on social media and dismiss us as incompetent, callous fools if they like. That’s their right…
One of the biggest headaches for health and social care workers is how to make sense of their duty of care. On the one hand we’re told that we must take steps to ensure safety and on the other hand we need to respect people’s rights to make their own decisions, even if they’re risky. This can be a delicate balance to strike.
How not to be hanged
It’s true that the law surrounding duty of care can be complicated but care workers aren’t expected to have the same knowledge as barristers. We’re expected to understand the basic principles of care law, to know what to do if we’re unsure and we have to act reasonably. We don’t even need to be right every time. We only need to be reasonable.
This 90 minute webinar/tutorial is designed for workers who are far too busy delivering care to spend their time reading through long reports of legal precedent. It covers the basic points we all need to be safe ‘at the coal face’ of care delivery in a practical, work-based way that is both engaging and understandable.
Delivered in plain English, the basic message of ‘Hanged if you do – Hanged if you don’t’ is
By taking the mystery and complicated jargon out of the equation, Stuart Sorensen guides workers step by step from basic principles to a solid understanding of duty of care. Real life stories and clear examples are used throughout to make the webinar both absorbing and easy to apply in practice.
Newcomers to care, especially mental health care often believe that they not only can but actually will ‘save the world’. They genuinely expect that their winning personality, supported only by a nice smile, a cup of tea and a chocolate digestive will solve every psychological problem there is. They’re the saviours and their naivety puts everyone at risk.
Most of us grow out of such expectations early on in our careers. We may have begun wanting to save the world but now we just want the world to go away and leave us alone. We’ve had the naivety of inexperience kicked, beaten or otherwise drummed out of us in no uncertain terms and we’ve learned that we can only do so much in our little corner of the system. We knuckle down, get good at our particular task or set of tasks and keep that original, positive spark of enthusiasm alive with realistic expectations and the ability to take delight in smaller successes.
But some people never grow out of their saviour fantasy. They never overcome the innocence that may well have led them into the job but that also makes them beat themselves up every day because they haven’t yet fixed everything. They may not show it often but these overgrown saviours are racked with guilt because of the impossible task they set themselves. If you’re one of these saviours please read on…
It’s pension day and Mary, a kindly octogenarian toddles out of her local post office clutching a wad of notes in her gloved hand. She never did manage to catch up with all that modern internet banking nonsense and has always been a little suspicious of computers managing her affairs. ‘That’s what cheque books and cash are for’, she reasons. Her handbag hangs nonchalantly from her elbow as she fishes in the apparently inexhaustible, portable cavern for her purse.
Suddenly – two young thugs come dashing toward her. One snatches the cash, knocking Mary to the ground as he does so. The second stamps on her head for good measure, causing bright red blood to stream from her ear onto the pavement.
You run to her, screaming at passers-by to call an ambulance as you cradle the unconscious old lady in your arms. You feel helpless and angry as she breathes her last, still held tight in your embrace. You’re angry but you’re not guilty. You tried to help, after all. You never caused this and at least you had a go, unlike the rest of society who seem only able to cross the road and look the other way.
Mental health care’s like that. We didn’t cause the problems our patients have developed. Often it took them years to become this ill. That’s not your fault and you’re not to blame. At least you’re trying to help!
By Caroline Spencer-Boulton, NALP Licenced Paralegal, 24:7 Criminal Defence
There has never been a better time for the legal profession to ask itself if it properly serving clients with mental health issues, with mental health firmly on the agenda and more people suffering as a result of Covid-19 and lockdown,
I believe there has been a distinct failure by the legal profession, over the years, in obtaining proper and full assessments of clients suffering from one or more mental health issues. This means the profession is letting down its clients and acting without the highest standards in mind. Even where there are clearly issues for concern, there has been a failure in many cases, to obtain appropriate psychiatric or psychological assessments. This needs to change.
I have specialised in the field of Criminal Defence for 14 years, the last eight years operating as a licenced paralegal preparing cases for my own clients both within solicitor firms and more recently on a privately funded client basis, I have been involved in the preparation of defence cases for a considerable number of clients with mental health issues.
The onus must be on the authorities and legal professionals throughout the UK to thoroughly consider a client’s potential mental health state from the outset. This should start at the police station interview stage. For example, adverse behaviour as a child or teenager growing up in care, or within a dysfunctional or disadvantaged family is currently deemed to be not enough of a concern for many legal representatives to consider further investigation or expert reports.
Such incidents have led to miscarriages of justice in the past, yet still today not enough consideration is given to those with mental health issues who get caught up within the criminal justice system.
As a police station accredited representative, I have attended at police stations, and other venues, to advise and assist clients who are being interviewed by police. At the police station when a client has been arrested and is being booked in to the custody suite they are asked if they suffer from mental health issues as part of the welfare check. Many will not divulge that information due to a perceived stigma associated with mental health.
One client, whose mental health issues were known to exist and a mental health nurse was on hand to determine whether the client was fit to be detained and fit to be interviewed, was declared fit by the nurse. I arrived, and in consultation with my client it was clear that they were unfit, because they were talking about angels and the devil, and clearly did not understand the reason for their arrest or where they were. Having made representations to the mental health nurse and the custody sergeant I was advised that despite my concerns and representations the interview would proceed! Within a minute of that interview commencing the police officer agreed that the client was not fit to be interviewed nor detained. The client was subsequently released into the care of their carer. Clearly there had been a significant error on the part of the police force and mental health nurse. Thus, it is imperative that police station accredited representatives and solicitors take the time to assess a client and perhaps, more importantly, make suitable representations to the police and mental health professionals if there are concerns.
Another client with mental health issues who was already serving a significantly long sentence advised me that they became involved in bad behaviour as they believed that they would be killed if they were not segregated. That client had received no mental health care in the, approximately, 10 years they had been incarcerated. Due to my concerns, a full psychiatric and psychological assessment and expert report was obtained. It transpired that one of the experts believed that the client’s original case was unfair due to the client’s mental health issues and that the client should consider appointing a legal professional to look at their original case with a view to submitting a fresh application to appeal. That client, with the diagnosis, evidence and advice submitted in the expert reports, was finally given mental health care and treatment in the prison.
These are just two examples of many I have dealt with, some in relation to submitting applications for leave to appeal, where I firmly believe a miscarriage of justice has taken place.
So, what needs to be done to address the issue? Here is what I believe needs to happen in order for the legal profession to better serve people with mental health challenges:
An in-depth assessment by the Crown instructed expert psychiatrists and psychologists. Often these people are only given the defence expert report and prosecution evidence. The Crown’s experts should be given sight of the medical records of those they are assessing, and they should provide a full assessment and report on the person’s ability to understand the trial process and take part in it. They should not be asked simply to provide a report aimed solely at a continuation of prosecuting a defendant. Often the full mental health issues are not covered in these Crown instructed reports.
Start at the police station
Full and proper consideration/assessment by mental health nurses at the police station stage. The aim is to determine, where a client suffers from mental health issues, their real ability to understand and give instructions and/or an interview. All too often clients are deemed fit for interview at the police station, when clearly, they are not.
The use of intermediaries in court proceedings appears to be a rarity. In a world where there is a significant trend towards those with mental health issues facing proceedings before the Courts, intermediaries should be instructed to assist the client during trials and other hearings/conferences where necessary. This intermediary service is currently heavily overlooked.
Education of legal professionals
This applies to both defence and prosecution, to help them understand mental health issues and the treatment options. Further educating legal professionals to note and consider these issues if they have concerns when dealing with a client. Encouraging them to obtain those vital expert reports, from psychiatrists and psychologists, as to their client’s mental health. More often than not those assessments prove vital to the outcome for the client.
Deeper consideration and use of Hospital Orders. Utilising the help available from the Probation Services and ensuring that the most vulnerable are protected by the courts.
Prisons should revert to proper rehabilitation techniques. These appear to have waned over the past 10 years or so. This should include suitable assessment of those with suspected mental health issues particularly within the Autism range, ADHD and PTSD; all of which can be complex. Appropriate treatment should be given to those serving custodial sentences. Those with significant learning difficulties and/or low IQ should be provided with approved courses and treatment to help with coping and progression, as well as obtaining employment once released. The government should put in place a service for those released from prison who suffer from mental health issues so that they may continue to be provided with assistance and treatment, in order to reduce reoffending behaviours.
Full expert reports should be obtained by defence solicitors/firms on their client’s behalf where and when possible. Legal aid funding is available for these expert reports where clients are legally aided. For those clients who are privately funding their defence case, their defence team should advise them about the importance of obtaining expert reports on a client’s mental health issues – albeit that this can be at a significant cost to the privately funded client.
On a positive note, there appears to be a very gradual roll out of psychiatrists being available at the Courts to assess defendants facing sentencing. A very tiny step, but certainly one in the right direction. However, my concern is that there are not enough hours in a day at the court for a full and proper assessment to be carried out. Therefore, in my opinion, without a full assessment, defendants will not be offered appropriate treatment or sentencing plans.
Mental Health is a wide-ranging condition which is all too often either not fully considered by legal professionals and related authorities or considered at all. This attitude and lack of proper consideration must change for future generations.
ABOUT THE AUTHOR
Caroline Spencer-Boulton is a NALP Licenced Paralegal from 24:7 Criminal Defence.
The National Association of Licenced Paralegals (NALP) is a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). http://www.nationalparalegals.co.uk
It’s easy to understand how humans and other species evolved physical characteristics as a result of adaptation and natural selection. Helpful variations confer their advantages down through the generations whilst less helpful variations die out. So longer-legged (fast-running) wild horses outrun their predators but those with overly long legs suffer broken shafts and are eaten. The optimum leg length is maintained by natural selection. That’s straightforward enough.
But what about mental and behavioural evolution? Evolved psychological traits are a little harder to grasp. To make sense of this fascinating topic it’s helpful to begin by considering evolved animal behaviours…. animal instincts, in other words.
The following examples of instincts from the animal world are directly analogous to human behaviours that are often described as ‘just human nature’:
Social (non reproductive), sexual behaviours (including promiscuous chimps and mutually masturbatory bonobos);
Protective behaviours from cats with kittens to soldier ants defending their nests;
Slave making behaviours such as ants carrying off pupae;
Parasitic behaviours such as cuckoos laying eggs in the nests of other species;
Flight distances that determine how close a gazelle will let the lion approach before it flees (abandoning its meal);
The Ichneumon wasp cruelly ‘sacrificing’ caterpillars of other species so that its own young can thrive.
It’s unlikely that all these creatures are fully aware of the implications of their actions – they act unconsciously and with sometimes ruthless efficiency. That’s instinct.
Homo sapiens shares these same instincts, often with just as little awareness of their true motivation.
These instincts – these ‘mental modules’ , are just as influential for our physical behaviours (homemaking, status-seeking) as they are for our psychological behaviours (paranoia, pattern-seeking, deference to authority).
Robert Wright’s acclaimed book The moral animal provides an accessible and detailed account of mental modules, using the life of Charles Darwin himself to illustrate the point. I won’t do the book justice here (I’ve read it twice so far and I still haven’t taken it all in). But I will try to give an outline. Here’s just one example…
Most people like the idea of loyalty – in fact they value it. Governments and religions, businesses and family groups alike consider it a great virtue. And yet even a moment of thought shows that in truth, loyalty is far from a universal virtue in the modern world and may actually be better thought of as a vice.
Why loyalty is a vice
People generally behave differently toward members of their own group than toward others. This is loyalty. So freemasons will favour other freemasons when seeking employees and racists give preference to strangers of their particular skin colour even though they know absolutely nothing more about them than. It doesn’t take much to realise just how unfair and unethical these sorts of distinctions, these group loyalties are. These are the more obvious of loyalty’s problems. There are other, less obvious but equally damaging examples too.
image Imagine a support worker who sees a visitor beating a vulnerable care home resident with a stick. What should the support worker do?
The answer, of course, is obvious – he should report the assault in the knowledge that adult protection is his legal obligation. This would allow the law to step in, protect the victim and prosecute the abuser. There’s nothing very difficult about that.
But what if the abuser was a friend and colleague? What if the abuser was the victim’s husband disciplining his wife in accordance with religious doctrine (a religion such as Islam, for example, which the support worker also followed)?
The law is still the same. The abuse is still the same but the loyalties will be different. And that’s where the problems begin.
Loyalty prevents us from doing what we believe to be right. When the support worker fails to report their colleague or fellow worshipper through loyalty they make continued abuse more likely. The same is true of ‘no grassing’ cultures where victims and bystanders alike are seen as disloyal to the group (think of schoolyards) or some vague notion of honour (think of adult crime). Loyalty that prevents reporting of offences is no more than an abusers’ charter.
And yet that’s the whole point of loyalty – to get people to bend or even break the rules. Without loyalty people are likely to do what they believe to be right. Loyalty simply interferes with right action. Far from being a virtue it is a major vice, a cause of great unfairness and superficial prejudice. So why do humans across the globe value it so highly?
Loyalty as a universal human trait (hard wired)
Remember our earlier discussion about the Environment of Evolutionary Adaptation (EEA)? That’s the environment in which most of our species’ characteristics were developed in response to the prevailing selection pressures.
In that environment early humans (and their evolutionary predecessors) lived in small groups where survival. of every individual (and their genes) depended upon the survival of every other individual. They were truly interdependent in ways that modern humans generally can only imagine. In order to survive they had to help each other, ensure mutual co-operation and, if they came into contact with other human groups, make sure that their own kin didn’t lose out. The principle of loyalty was born.
The mental module of loyalty
We covered heuristics in an earlier post too. The mental shortcut that gets us to solve problems without having to think about them. Loyalty is an heuristic. It’s a mental module hardwired since the pleistocene that says
“Favour members of your own group”.
In the early days of human evolution that may have been a vital principle but today it’s just unfair and unethical. Nationalism, sexism, racism and a host of other ‘isms’ really just boil down to arbitrary loyalties based upon irrelevancies such as skin colour, religious cultural tradition and place of birth.
And now the good news
The universal nature of loyalty based cultures shows us that this particular mental module is hard wired. And yet many people have managed to get beyond these petty loyalties and act in accordance with their conscience instead. This must give us cause for optimism.
The fact that whistle-blowers exist and that most people have moved beyond racism shows that it is possible to overcome hard-wired mental modules. I suspect that greater understanding will go a long way toward this goal as we discover more and more about the various mental modules bequeathed to us by our earliest human and pre human ancestors. Knowledge is power. If we want to outgrow the primitive behaviour of Homo habilis we’ll do well to try to understand him/her first.
I’m fed up of coming across people, often with serious psychiatric or medical conditions who stop taking their evidence-based, imperfect but at least understood medications in favour of misunderstood, useless and even harmful ‘remedies’ from elsewhere. I’m sick and tired of reading adverts in theatres, hotels and social clubs advertising psychic mediums, faith healers and other woo practitioners who promise, without even a hint of embarrassment to be able to talk to dead people, to angels, to clean your soul, rebirth you, even to steam your womb, all for a small fee, of course.
My original plan was just to rant on my Youtube channel about it all but that seemed unfair. So I’ve come to the South West of England, to ‘woo central’ as one of my respondents described it to see if any of the practitioners here can convince me that what they do really is useful.
Even though I was very up front that I’m sceptical if not actually hostile to the very idea of alternative medicines because it either hasn’t been tested or has been shown not to work most people were friendly and had a great deal to say about their beliefs and in defence of the treatments they offered, although only 4 agreed to be interviewed on camera.
It was fascinating to see what many Glastonbury people thought of as adequate evidence. For many it was merely to make a claim. If you can say it, if you can think it, that’s evidence.
For others, such as the lady I met on the street, simply stating the obvious was evidence enough.
One man in particular, Eddie the potter, whilst still having faith in some alternative therapies was clearly sick and tired of the woo merchants who spend their time ripping off ill people who really need help instead of exploitation.
I couldn’t help feeling that many of the people I spoke with, especially many of those who wouldn’t agree to be filmed are only too aware of the scam they’re engaged in. I won’t say all the healers are deliberate con artists. I met several who seemed sincere although their logic when trying to explain their work seemed confused. But I don’t doubt their sincerity.
On October 25th 2007 22 year old EG gave birth to twins at the Royal Shrewsbury Hospital. A few hours later she was dead because she refused to accept a blood transfusion. EG was a devout Jehovah’s witness. She suffered a sudden haemorrhage and bled to death following a natural delivery. EG had already signed a form before the birth refusing blood in such an event.
According to newspaper reports staff at the hospital tried to get EG’s husband and wider family to consent to the blood transfusion on her behalf but they would not.
Is this ‘valid and applicable’ as an advance decision to refuse treatment?
What about the notion that ‘decision-makers should not be motivated by a desire to bring about the person’s death’?
What do you make of the staff asking EG’s family to overrule her decision?
If the family had consented would the transfusion have been legal?
If not – would the family have been liable or the staff who gave it?
Who was the legal decision-maker in this situation?
When dealing with people whose behaviours are challenging it’s important to acknowledge that those behaviours may well be based upon some very deep-seated beliefs. Whilst we don’t need to agree with or even support beliefs that cause problems it is vital that we acknowledge the person’s right to hold them – even if we deny their assumed right to act upon them. It’s one thing to object to behaviours – it’s quite another to dismiss the person who holds those beliefs.