Transcript MENTAL WELFARE COMMISSION OVERVIEW OF FINDINGS IN

Mental Welfare Commission
MHO Study Day
Margaret Christie/Mike Diamond
Investigations
MWC Investigations Statutory Remit
Mental Health (Care and Treatment) (Scotland) Act 2000 Section 11
Authority to carry out investigations as we consider appropriate and to make any
recommendations we feel appropriate into circumstances where the individual:
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may have been unlawfully detained or subject to compulsion in the
community under MH/CPA Acts
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may have been subject to ill treatment, neglect, or some other deficiency in
care or treatment
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is living alone without care and unable to look after himself or property or
financial affairs, and
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Where the individual’s property may be suffering or at risk of suffering loss or
damage or may have suffered or been at risk in the past as a result of their
mental disorder
MWC Investigations Statutory remit (2)
• Section 12 (MH ACT): Authority to carry out formal,
inquiries which have the privilege of proceedings in a
court.
Adults with Incapacity (Scotland) Act 2000
• Section 9: Authority, expressed as a general function, to
receive and investigate any complaints concerning the
exercise of functions relating to the personal welfare of
the adult by welfare guardians, attorneys or persons
authorised under intervention orders where the
Commission are not satisfied with the local authority
investigation under S 10 or they have failed to carry one
out
How do cases for investigation come to
our attention?
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Visits
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Phone calls
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Correspondence
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Referrals from other statutory agencies or scrutiny bodies (e.g. Care
Commission, SWIA)
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Critical incident reviews or other local investigations
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Reports of suicides, accidents or incidents
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Scrutiny of statutory forms (CTO applications, SCRs Guard.
Applications)
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Reports in the press
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At the request of Scottish Ministers
How do we decide on cases to investigate?
OMG use a decision framework which looks at:
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Seriousness of occurrence
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Seriousness of impact on individual
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Whether others in similar circumstances may be at risk
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Whether we are aware of a number of concerns about this issue either locally,
regionally or nationally
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Would there be lessons drawn which would have wider implications for mental illness
and learning disability practice across Scotland
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Is there prima facie evidence of neglect, ill-treatment or deficiencies in care and/or
treatment
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Does it involve more than one service
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Have we investigated similar case in past few years
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Is the issue more appropriately investigated by another body or has it been
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Is there evidence the service is addressing issues themselves
Duties under legislation
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MH Act Section 11(1) re Commission Visitor’s role in investigations: referred to inhouse as “casework”
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MH Act Section 11 (1A) re Commission directing Commission Visitor to carry out
investigation :
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Matters to be investigated include: unlawful detention; where patient may be, or may
have been subject or exposed to ill-treatment, neglect, or some other deficiency in care
or treatment; where, because of mental disorder, the patient’s property may be
suffering, or may have suffered, loss or damage or may be, or may have been, at risk
of suffering loss or damage; the patient may be living alone or without care; and where
the patient may be unable to look after himself or his property or his financial affairs
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AWI Act Section 9(1)(d): authority to investigate where we are not satisfied with any
investigation made by a local authority into the use of powers by a welfare proxy or
where the local authority have failed to investigate a complaint, and
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AWI Act Section 9(1)(e): authority to investigate any circumstances made known to
us in which the personal welfare of the adult with incapacity seems to us to be at risk,
and
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AWI Act Section 9(1)(f): authority to investigate any circumstances made known to us
in which the property of the adult may, by reason of mental disorder of the adult, be
exposed to a risk of loss or damage
How do we exercise these duties at
present?
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Practitioner casework: From August 2011- August 2012, there were
274 episodes where casework was undertaken following 1557
individual visits and, beyond this, there were an additional 2080
cases correspondence contacts which resulted in casework being
undertaken during this period, the majority from phone duty
contacts.
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Practitioner referrals to OMG investigations focussed monthly
meetings
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OMG decision to investigate: Target of completing and reporting on
4 such investigations annually
Examples of MWC Investigations
• A table of active and recently completed
investigations will be regularly forwarded to the
Board for information
• Most investigations and executive summaries
are available on MWC website
• The following slides give examples of some
investigations, their findings and
recommendations
Justice Denied: Report of the Investigation
into the Care and Treatment of Ms A
Reason for Investigation: Housing Association
reported allegation of rape of tenant and were informed
by police that several similar assaults were alleged to
have taken place. They said they had never been
advised by social work department when she was
referred to them.
Justice Denied : Findings
Access to Justice:
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The UN Convention on Rights of People with a Disability places a duty on State
Parties to ensure effective access to justice on an equal basis with others. For a
number of complex reasons, this did not appear to have happened for Ms A.
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Staff were confused about their professional responsibilities when it came to
reporting a crime that Ms A did not want to report herself.
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Staff had varying, often insufficient, knowledge of relevant legislation and
organisational procedures essential to protecting vulnerable adults with mental
disorder.
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There was no consensus among those caring for Ms A about her capacity to
consent to sexual activity and this adversely affected her ability to access equal
justice.
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Ms A’s assessment by psychiatrists and psychologists for competence as a
witness was not informed by professionals who knew her best.
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No evidence that professionals had considered how support and preparation
might have helped Ms A to act as a witness.
Justice Denied: Findings (2)
Deprivation of Liberty:
• Generally acknowledged that Ms A remained
at risk from a small number of identified men in
the area and the fact that they had not been
prosecuted left Ms A at continued risk.
• The subsequent level of restriction necessary
for Ms A’s care and protection constituted, we
believed, a deprivation of liberty which required
legal sanction.
Justice Denied: Findings (3)
Stigma and attitudes towards people with a
learning disability
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Underlying attitudes of some professionals towards people with
a learning disability may have affected their response to the
incidents and allegations that were reviewed as part of our
investigation. We believe this compromised the quality of her
care and support, as well as her basic right to equal protection
under the law.
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It was difficult to escape the conclusion that different standards
were applied to Ms A because she had a learning disability.
Justice Denied: Findings (4)
Communication and Recording:
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Poor communication between all the key parties involved in Ms A’s
care.
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Professionals involved often not aware of important information
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The recording of information in health and social work case files was
often poor.
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At several crucial points health staff did not appear to have fully and
clearly communicated their assessments of Ms A to their social work
colleagues.
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Neither the requests for a report on Ms A’s capacity to be a competent,
reliable witness nor the assessment by medical staff and psychology
were shared with social work colleagues. This adversely affected the
management of Ms A’s care and protection
Justice Denied: Findings (5)
Assessment of capacity to consent to sexual
activity:
• There was no evidence of a formal, multidisciplinary
discussion of Ms A’s capacity to enter into a sexual
relationship and the implications of this in relation to
mental health law.
• There was never a proper, considered discussion about
the potential offences under Section 106 of the 1984 Act
or under Section 311 of the 2003 Act. This represented a
fundamental flaw in the health and social work team’s
management of the case.
Justice Denied: Findings (6)
Risk assessment and risk management:
• Despite staff being aware of the specific
individuals and circumstances that increased Ms
A’s exposure to risk, these were never seriously
addressed in a formalised assessment of risk and
subsequent risk management plans.
• This resulted in Ms A remaining at risk and being
subject to further assaults which could have been
avoided.
Justice Denied: Findings (7)
Clarity about roles and responsibilities:
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There was often a lack of clarity around the respective roles of
professionals and agencies throughout most of the period of
investigation.
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There was a lack of clear leadership in the multidisciplinary team
working with Ms A.
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The role of the Community Learning Disability Nurse was too narrowly
perceived and the potential protective role was therefore lost to the
team.
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The MHO role was similarly constrained and was limited to that of
processing applications for Guardianship and provision of technical
expertise. The MHO’s knowledge, skills and experience as a specialist
social work practitioner could have made a key contribution in Ms A’s
assessment and care planning.
Justice Denied: Recommendations
There were 24 recommendations in all which
followed on from our findings. Of these, 8 were
directed at Scottish Ministers; 8 at the local
authority social work department;4 at the local
NHS Board; 3 at the local police force and 1 at
relevant professional regulatory bodies
Enquiry into Care and Treatment of Mr H:
Report on deficiencies in care and treatment of a man
with alcohol related brain damage
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Reason for Investigation – Mr H became known to the
Commission when an application for Guardianship was made
by the Social Work Department in 2004. He had been
diagnosed with dementia related to long term abuse of alcohol.
Despite frequent contact with Health and Social Work Services
as a result of his alcohol abuse, appropriate action was not
taken until he was found to be living in squalid conditions, was
malnourished and was showing evidence of physical and
financial abuse.
Mr H Main Findings
• Very poor assessment including assessment of capacity
and risk.
• Lack of understanding of the impact of drinking on an
individual’s mental capacity by all involved.
• Poor co-ordination of community care assessment with
undue reliance on Social Work Department’s duty
system.
• Poorly co-ordinated service provision and poor
communication within and between services.
Mr H Main Findings cont.
• Failure on the part of the professionals involved to
undertake a focused assessment of risk at many key
points over a number of years, despite the
acknowledgement of vulnerability throughout this period.
• No evidence that key health and social care staff had
any knowledge of the potential relevance and usefulness
of statutory legislation in enabling a comprehensive
assessment to be undertaken and in securing key
elements of any subsequent care plans.
Mr H Main Findings cont.
• Poor recording in relevant Social Work Department files.
• Poor managerial oversight of the Social Work
Department front line enquiry/intake system allowing
vulnerable person to remain at risk of abuse, exploitation
and neglect over a number of years without a proper
assessment of his community care needs.
• Lack of strategic approach to the planning and provision
of services to people with ARBD.
• Lack of knowledge and awareness of ARBD among
health and social care professionals.
Mr H Main Findings cont.
• The assessment, planning and delivery of care
by those professionals involved with Mr H over
a number of years was adversely affected by
prevailing critical attitudes towards people who
abuse alcohol.
Mr H : Recommendations
Five recommendations were directed jointly at
the local authority social work department and
local NHS Board; 1 specifically at the social
work department; one specifically at the NHS
Board; and 2 at Scottish Ministers
Mr &Mrs D - Background
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Couple with mild learning disability married for over 25yrs. Both,
when younger had been in special schooling and one in
institutional care.
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After marriage had own house and did well with support of father
of one of the couple.
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When father died, brother of husband took over care, excluding
rest of family. He began to control every aspect of their lives.
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Social work CLDT involved and had concerns about brothers
behaviour
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Years later, a year after 2000 Act, brother has them sign welfare
and continuing power of attorney documents certified by GP
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Years later social work undertake AS&P investigation and involve
MWC about concerns.
Mr & Mrs D: Findings
Records reviewed documented concerns about:
Emotional abuse such as threats of getting at least one of
the couple taken into care.
• Physical abuse with allegations of physical violence.
• Financial abuse such as running up debts and failing to
pay bills.
• Interference with health and social care services
including attempts to block service considered important
for the couple.
• Misrepresentation of health conditions to GP; and
• Interference with the couple’s privacy and wishes such as
opening their mail and restricting access to other family
members.
Findings: Assessment of need and risks and
the planning of care
• Failure by the local authority to thoroughly assess need and risk
and to plan for the management of risk during spells when they
had serious concerns about abusive behaviour by the attorney.
• Managers did not act on serious concerns recorded by one
community care officer on several occasions.
• Reasons for above failures included: poor communication
between staff; lack of awareness of the existence of the power of
attorney and a poor understanding of the relevant legislation.
• Also poor case recording and the lack of a lead person
coordinating the assessment and care management of the Ds.
• Gap of over two and a half years where no records were
available following the granting of the powers of attorney.
Findings: Communication between the community
learning disability team and the primary health care
team
• The CLDT did not keep the GP informed of their concerns
about the actions of Mr E. Had they done so, the GP
would have been more aware of the influence and
pressure Mr E exerted in seeking to be granted powers of
attorney on their behalf.
• This may well have altered the view of the GP about their
capacity to grant the powers of attorney and to do so
without any undue influence by Mr E.
• Because of this poor communication, the GP did not
contact the CLDT when requested to certify the capacity
of Mr and Mrs D to grant powers of attorney.
Findings: The role of the GP in certifying the
powers of attorney
• As a result of poor communication with the CLDT the GP
was not aware of the extent of Mr E’s influence over Mr
and Mrs D.
• The GP could have contacted the Consultant Psychiatrist
for advice as there had been previous correspondence
between the GP and the Consultant Psychiatrist.
• It was likely that the GP’s views on Mr and Mrs D’s
capacity to grant the powers of attorney were influenced
by Mr E.
Findings: The role of the solicitor in the
granting of the powers of attorney
• The solicitor did not appear to have taken instructions
from the Ds re the drafting of the powers of attorney.
• The solicitor did follow the guidance from the Law Society
of Scotland in seeking certification form a medical person
when it was felt that the capacity of the couple may be in
question.
• The Law Society guidance is deficient as it only comprises
two sentences devised prior to the 2000 Act and does not
take into account the implications of granting welfare
powers as distinct from financial powers.
Findings: Assessment of capacity and undue influence
• The assessment of the capacity of the Ds to grant or
revoke the powers of attorney did not include a proper
consideration of their capacity to act to protect their own
interests.
• It is the inclusion of the “acting” component in the
definition of incapacity in the Act which ties the concepts
of incapacity and undue influence together.
• Undue influence, simply defined, is when an individual
who is stronger or more powerful gets a weaker individual
to do something that the weaker person would not have
done otherwise
• Just as emotional and practical support can enhance an
individual’s capacity to make a decision or take an action,
undue influence can impair an individual’s capacity to
make these decisions or to take these actions.
Findings: The decision by the local authority
not to intervene
The local authority
• had recorded sufficient concerns to intervene even before
the POAs were granted.
• had evidence that Mr E exerted undue influence over the
Ds taking action to protect their own interests.
• could have applied to the sheriff for directions on the use
of powers by the attorney or, to have the powers removed
or made subject to supervision by the OPG and/or the
local authority.
The l/a:
• gave too much deference to the Ds in proceeding at their
pace in having the POAs revoked. It should have removed
the responsibility from the Ds and taken action to offer
them better protection.
• did not appear to have ever requested specific advice
from council solicitors on options available to them and
the evidence required to pursue these.
• did not record any discussion of options/actions available
under the AWI Act within the various AP case conferences
and multidisciplinary reviews following the incident which
led to the AS&P investigation.
Implications
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These investigations are high profile activities and result in respected and well-read
publications. They are often picked up by the media. The reports are widely distributed to
health and social services, the Scottish Government, Adult Support and Protection
Committees, Inspectorates and relevant voluntary organisations. They have helped form
and preserve our reputation. For many of the public these investigations are the only way
they know of us. Many will feel this is our prime reason to exist – these investigations
showing clearly and starkly how we exercise our protective role in intervening on behalf of
those vulnerable due to mental illness, learning disability or related conditions and work to
improve practices and services. We have strong evidence of our findings and
recommendations having an impact well beyond the specific areas and services being
investigated.
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These in-depth investigation reports enhance our authority and reputation due to the nature
of the investigation, involving a thorough scrutiny of the relevant case files and individual
and group interviews. It showcases the professionalism with which we go about our work
and underscores how closely we look at and are concerned about the care of
individuals..They also keep others on their toes knowing that bad or deficient practice may
well become the subject of one of our investigations.
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It is difficult to determine the exact number of these reports which are sufficient to maintain
our public profile and image. Arguably three might be sufficient. More than four might be
overload for services trying to absorb the lessons and implement the recommendations on
a regular basis. Over-exposure risks the danger of our recommendations becoming
ignored.