A short video to accompany Mind The Care Training’s ‘Hanged if you do & hanged if you don’t’ training for health and social care workers. If there’s one thing that unites almost everyone concerned with health and social care services it’s the fear of being sued.
Otherwise rational and courageous workers have been reduced to quivering wrecks at the mere suggestion of litigation or the slightest suggestion that they might have failed in or ‘neglected’ their duty of care.
Duty of care is such a preoccupation for workers that it crops up daily in conversation and in practice whenever we encounter ‘thorny’ issues relating to ‘health and safety’, ‘rights and responsibilities’, ‘freedom of choice’, ‘confidentiality’ and a host of other topics. However not everyone who hears the term understands what it means or indeed where it comes from.
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.
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
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?
Most people are surprised to learn that they maintain (and often actually create) the problems they face. Often people will work hard to resist this idea and that can be difficult to overcome but it’s worth the effort. Until people understand their own role in maintaining their difficulties they cannot really take responsibility for solving them. After all – if you don’t think you’re a part of the problem you won’t think that you need to change your behaviour to change it.
Challenging behaviour strategies aren’t necessarily complicated but they are powerful. It’s important then that we use them ethically. This video outlines some of the more basic points about ethics and philosophies of working with people who challenge us.
When assessing an individual’s mental capacity it is important that we confine ourselves to assessing that person’s ability to make this particular decision (or type of decision) at this time. This is what the Act means when it refers to ‘time and decision specific’ assessment.
At first glance this seems obvious and clearly reasonable. However on closer inspection it brings up a number of issues relating to ‘established practice’ that need to change. It also provides many workers from support workers to nurses, social workers and many others with a very real source of anxiety. Here’s why.
In the past capacity decisions tended to be made by certain professionals such as psychogeriatricians or psychologists. One typical approach would be to ask a doctor to come and assess a service-user’s capacity, not in relation to a specific issue but ‘globally’. This would be done using one of several techniques, the most common in UK being the Mini Mental State Examination (MMSE).
The MMSE is a reasonable tool to assess cognitive deficit and is helpful in diagnosing certain conditions such as dementia but it is not an assessment of capacity. Diagnosis is not the same as capacity. The fact that a person has a particular diagnosis does not tell us anything about their capacity to make particular decisions. The MMSE is not decision specific unless the care and treatment being offered relates to the service-user’s ability to count backwards from 100 in 7s or to name the current Prime Minister.
The MMSE does not inquire into preferences of diet, whether or not a person understand how to cross a road safely or what time they would like to go to bed. These are the sorts of questions that must actually be assessed on a day to day basis when we are making decisions about a person’s capacity.
The other major problem with ‘global’ assessments of capacity (apart from the fact that they do not asses capacity in the first place) is that they are not time specific. A psychogeriatrician’s assessment at the start of the month will have little bearing upon the service-user’s day to day decision-making capacity at the end of the month. So unless we can persuade the Dr to visit each service-user every mealtime to assess their capacity to choose between carrots and peas we have to use a different system.
Fortunately the Mental Capacity Act provides us with just such a system and, although unfamiliar to many it is very straightforward and in fact reflects what we’ve all been doing since early childhood anyway. You see assessing capacity is not difficult in itself so long as you understand it – and also understand what we are NOT expected to assess just as clearly as what we are expected to assess.
The Mental Capacity Act is clear….
“The decision maker is the person delivering the care or treatment”
This means that the support worker who decides that Albert needs a bath is responsible for assessing whether or not Albert has the capacity to consent to that bath. If he or she decides that Albert does not have the capacity to consent to that bath then the support worker is also responsible for deciding whether or not the bath would be in Albert’s best interests.
This may seem unfamiliar when it’s written down like that but actually that is precisely what has happened day in and day out in practice for decades in health and social care settings. Nobody calls the GP every time they think a resident in a care home might need their hair washed – they just decide. What the Mental Capacity Act does for us is it provides us with a way to show that our decisions make sense and gives us the legal backing to be free from prosecution for assault so long as we can justify our actions.
Part 5 of the Mental Capacity Act is subtitled ‘Protection from liability’ and deals with just this issue, ensuring that care workers can do what is necessary so long as they can show that the individual lacked capacity and that their actions were both proportionate and in their best interests. This is very empowering for care workers because it allows them the respect they deserve in making day to day decisions and provides them with legal protection at the same time.