Implications of the Mental Capacity Act 2005 for Learning ...
Safeguarding duties and powers to safeguard those who self neglect Fiona Bateman Independent Chair Southampton Safeguarding Adults Board IDENTIFYING SELF NEGLECT AND HOARDING BEHAVIOURS 2 Self Neglect No clear operational definition of self-neglect, but is recognised as a behavioural condition in which an individual neglects to attend to their basic needs such as personal hygiene, or tending appropriately to any medical conditions. It is characterised by an inability to meet ones own basic needs, the inability (intentional or non-intentional) to maintain a socially and culturally accepted standard of self-care with the potential for serious consequences to
the health and well-being of the individual concerns, other household members and neighbours. It can occur as a result of mental health issues, personality disorders, substance abuse, dementia, advancing age, social isolation, and cognitive impairment or through personal choice. This could manifest itself in unkempt personal appearance or no longer taking any interest in personal appearance and general hygiene, not wearing appropriate clothing for weather conditions, significant refusal to eat (without apparent illness), disinterest in financial affairs, hoarding items and pets, 3 offensive odours, pest infestation, etc. Hoarding This is defined as the acquisition of items with an associated inability to discard things that have little or no value to the point where it interferes with use of the persons living space or activities of daily living. Signs of Hoarding: Conditions of extreme clutter, especially where necessary objects in the household, like bathroom facilities, food storage, stove, and entry and exits are
blocked Inability to throw things away that may seem like, or actually is, rubbish. Individuals who engage in these behaviours have difficulty answering a question directly and give long and winding explanations. Hoarding can become a comfort for someone, especially during times of discomfort, or upset. Sensory deprivation/loss (i.e. loss of hearing or sight) can sometimes lead to hoarding behaviour as well. UK cultural context, namely our preoccupation with hygiene and a tolerance4 of perceived eccentricity, fosters confusion about if, when and how to respond. Hoarding Disorder Myth: Hoarding is a lifestyle choice. Truth: In May 2013, Hoarding Disorder was re-classified as a condition in its
own right under the US Diagnostic Statistical Manual-V (DSM-V) (American Psychiatric Association, 2013). The NHS, generally, uses the World Health Organisations International Classification of Diseases (ICD-11) system to diagnose mental health conditions rather than the US DSM-V. Hoarding Disorder is now included in the ICD-11 which characterized hoarding disorder as: excessive accumulation of and attachment to possessions regardless of their actual value. Items may be hoarded because of their emotional significance, perceived potential usefulness, or intrinsic value. Excessive acquisition or failure to discard possessions results in cluttered living spaces the use and safety of which are compromised. Excessive acquisition is characterized by repetitive urges or behaviours related to buying, stealing, or amassing items, including those that are free. Difficulty discarding is due to a perceived need to save items and distress associated with discarding them. Hoarding behaviour is sufficiently severe to result in significant distress or significant impairment in personal, family, social, 5
educational, occupational or other important areas of functioning LEGAL CONSIDERATIONS 6 Public Law Responsibilities The Care Act guidance [pg.14.14] advises the adoption of a broad community approach so essential that statutory bodies understand the available legal powers for intervention when individuals lack capacity or a property is verminous and/or filthy AND how to use those powers in line with PUBLIC LAW PRINCIPLES: Act lawfully, compliantly with human rights, properly understood, within your statutory powers and not outside it (dont fetter your discretion with hard and fast rules or policies to which no exceptions are ever made: a discretion isnt a discretion if youve decided never to use it. Apply the HRA and MCA correctly and record reasons for using/ not using all relevant legal powers! Act reasonably rationally, with an evidence base, and proportionately Act fairly in procedural terms, and in accordance with the rules of natural
justice (i.e. dont make assumptions about relatives you suspect of obstructing care for their own agenda: have it out with them, so that they can address your concerns. Theyre best interests consultees unless you are prepared to say why 7 they shouldnt be!!) Safeguarding Duties Safeguarding responsibilities arise, under s42 Care Act, where there is reasonable cause to suspect that an adult: has needs for care and support (whether or not the LA is meeting any of those needs) is experiencing, or is at risk of, abuse or neglect and as a result of those needs is unable to protect him/herself against the abuse or neglect or the risk of it. The Local Authority is required to make (or cause to be made) whatever enquiries it thinks necessary to decide whether protective action should be taken and, if so, what and by whom. All agencies, including housing providers signed up to the policy will have duties to act to safeguard an adult at risk but agencies do not have any
additional powers under Care Act to investigate or intervene where there are adult safeguarding concerns, so any intervention must consider the legal powers they have and legal obligations owed to an individual. As, even if people lack capacity, there is no immunity for unlawful or disproportionate 8 interventions. So the issue to decide in each case is: Is an intervention warranted? Learning from SCRs Bray et al 2013 9 Case Study: Mr and Mrs A
Mr A and his wife have reportedly been hoarding faeces in their flat for over two years, in plastic-wrapped buckets. The housing association intervened in 2014, and removed 62 such buckets from the premises after temporarily moving the couple to a hotel. Mr A reports having had no choice but to use the buckets, as their toilet had been broken for two years (he had not reported this to the repairs department). The housing association reports that they believe that the couple are again hoarding faeces. On receipt of the referral the social worker speaks to the Area Housing Manager at the housing association to try to get some more specific information about their concerns about Mr As mental state. Unfortunately despite some considerable efforts from the duty worker, she was unable to gather any information about the specific concerns about his mental health, other than that his hoarding behaviour is very extreme. The housing officers view was that they are not mental health workers, so cannot give a view about his mental health. The housing association is now moving to evict the
couple, on the grounds that they now have over 7000 of rent arrears. Mr A reported that he had chronic and acute faecal incontinence complicated by IBS, and that his wife was his carer. He said he was not registered with a GP because his condition preventing him from attending appointments. However, he refused further support to register with a GP, stating he could do this himself. The referral pathway for specialist mental health input is via GP so ASC close the case believing Mr A ineligible 10 and recommending a physical and mental health review in primary care. Consider: are there failings? What could your service do to ensure better a outcome? LEGAL POWERS TO INTERVENE 11 s31 Public Health Act - disinfection of premises (1) If, on a certificate of the proper officer of the local authority for a district, the local authority are satisfied that the cleansing and disinfection of any premises,
and the disinfection or destruction of any articles there likely to retain infection, would tend to prevent the spread of any infectious disease, the authority shall give notice to the occupier of the premises that they will at his cost (a) cleanse and disinfect the premises, and (b) disinfect or, as the case may require, destroy any such articles, unless, within 24 hours after the receipt of the notice, he informs them that within a time to be fixed by the notice he will take such steps as are specified in it. (2) If (a) within 24 hours after receipt of the notice the person to whom it is given does not so inform the authority, or (b) having so informed the authority, he fails to take the specified steps to the satisfaction of the proper officer within the time fixed by the notice, the LA may cause the premises to be cleansed and disinfected and the articles to be disinfected or destroyed, as the case may require, and may, if they think fit, recover from him the expenses 12 reasonably incurred by them in doing so. Part 1 of the Housing Act 2004
Gives LA powers to take enforcement action where there is any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise) and can require access to residential premises in their district to assess if such a hazard exists. Power of entry: duty to inspect the property is restricted to where there is an official complaint made by either a Justice of the Peace or parish council. However, where there is evidence that there is imminent risk of serious harm to the health and safety of the occupier the LA has emergency powers to serve a Remedial Action Notice or an Emergency Probation Notice prohibiting the use of the property. Further there are powers to serve a deferred action notice and take emergency remedial 13 action. Environmental Protection Act 1990
The EPA provide LA with powers of entry to inspect premises and serve Improvement or Prohibition Notices where a property is in a condition that is prejudicial to health, these powers do not require that the individual affected by such intervention lacks capacity. Properties must be verminous or pose a statutory nuisance. Where the individual residing in conditions that pose a threat only to their own welfare these powers may have limited or no effect. In cases involving persistent hoarders the powers may only temporarily contain the problem and could be detrimental to the persons emotional wellbeing. It must therefore be recognised that utilising powers under housing and/ or public health legislation in isolation may not be the most effective use of resources, particularly where a coordinated approach could not only provide immediate protection of the individual and others affected but 14 also promote a long term solution. Duties under the Care Act The duty to assess under s.9- 10 Care Act is triggered by the appearance of
need; their level of need and/or financial considerations are irrelevant. s.9(4) requires that an assessment must include an assessment of the impact of the adults needs for care and support on the persons wellbeing and the outcomes that the adult wishes to achieve in day-to-day life, specifically those set out in s.2(2) Eligibility Criteria Regs. 2014. It must also consider whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes. s.9(5) specifies that a LA, in carrying out a needs assessment, must involve(a) the adult, (b) any carer that the adult has, and (c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adults welfare. Mode of assessment: LA is given a lot of flexibility in the method and level of an assessment and can triage, provided assessor obtains a competent 15 understanding of the level of needs and risk to the person and/or carers. Working with those who refuse to engage Even when an adult refuses a needs assessment the LA is required
(s.11(2) Care Act) to carry out a needs assessment if(a) the adult lacks capacity to refuse the assessment and the authority is satisfied that carrying out the assessment would be in the adults best interests, or (b) the adult is experiencing, or is at risk of, abuse or neglect Approved mental health professionals [AMHP] may be able to use powers to carry out an assessment if proportionate and necessary to protect a person with mental disorder under: S115 MHA- provides that an AMHP may enter and inspect Ps residence if reasonable cause to believe P isnt under proper care, but there no power to force entry or override owners refusal to give permission. s135 MHA- powers to enter a property, using force if necessary, to remove a patient for treatment or care where an AMHP believes a person is suffering from a mental disorder is unable to care for himself and living alone (or otherwise being illtreated or neglected). NB: The AMHP must obtain a warrant from the Court before using this power. s.8 MHA- guardianship might provide access in limited circumstances
Police only have powers of entry without a warrant if required to save life; or limb or prevent serious damage to property; or recapture a person who is unlawfully at large while liable to detained 16 Mental Capacity Act 2005 The MCA must be considered in relation to involvement for assessment and care planning duties for this client group. There is concern that capacity assessments overlook the function-specific nature of capacity, with the result that apparent capacity to make simple decisions is assumed in relation to more complex ones. As with all incapacity assessments, the essential preparation turns of defining the issue and context in respect of which one intends to explore the persons cognitive processing. It isnt just: do you realise what the neighbours think or do you understand that insects carry bacteria? Nor do you understand that if you do not eat, you will lose weight and become malnourished? The conversation should enable assessment of the persons understanding of the
overall cumulative impact of a series of small decisions, for which they do have capacity, but where they might not have capacity to understand the overall impact. Also remember that s.6 MCA does not permit a public body to deprive a person of their liberty. LA may need authorisation either through DoLS process or from Court of Protection to intervene if capacity is in question. 17 Potential for misunderstanding the Consequential Significant Impact of wellbeing
The assessor is the ultimate decision maker in determining whether there is consequential significant impact on a persons wellbeing The persons view is an essential factor in making that decision, but the decision is the assessors If a capacitated person was living in squalor, but they are denying this is having any impact on their wellbeing they could still be found to have eligible needs, because the assessor can show otherwise. However, the duty to meet needs hinges on what needs the person themselves wants you to meet as the Care Act does not give the Local Authority powers to compel a capacitated person to accept support. So whilst you might find eligibility under the Care Act, you will still have the same problems with a capacitated person refusing support 18 Private Law duties
Landlords, even in the private sector, have an obligation to ensure that their properties are in a good state of repair and are fit for human habitation. Where the tenant is responsible for the disrepair the landlord has a right of action, including ultimately seeking possessions of the premises. The role of the landlord and powers afforded to them suggests they have a key role in alerting the statutory authorities to particular cases and that consideration should always be given to their inclusion within the strategy discussions. 19 Social work and health care solutions?
Treatment may involve treating the cause of the individual's self-neglect, with treatments such as those for depression, dementia or any physical problems that are hampering their ability to care for themselves. The individual may be monitored, so that any excessive deterioration in their health or levels of self-care can be observed and acted upon. Practical help can involve deep cleans and fumigations, or care workers providing home care, attending to cleansing, dressing or feeding the individual as necessary, without reducing their independence and autonomy any more than is essential. In combination with other illnesses, self-neglect may be one of the indicators that a person would be a candidate for sheltered housing or a care home. It is often thought that this would also improve their condition by providing
opportunities for social interaction, but that is not necessarily the case and their problems could then impact more widely on others, and become 20 neighbour nuisance, or cause upheaval in a placement. Current guidance The present guidance requires updating to taking into account the changes introduced by the Care Act 2014 and to support a multi-agency, broad community response. Taking into account the case study and the information on current available powers please comment on:
What you feel staff could have done differently to support Mr A What practical steps your agency could take either to support statutory agencies carrying out assessments or provide direct assistance to those experiencing or at risk of self neglect. What further training/support you or your agency would need to identify issues or hoarding/ self neglect. 21 Thank you for participating today! The LSAB will use your feedback to develop a toolkit for practitioners offering guidance on how to recognise and respond to neglect and poor self care. This will also map the available pathways in Southampton for appropriate interventions. 22
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