Scotland - care home. Who has the legal 'say'

[flourpot]

Looking for a bit of advice as I'm in a situation where I have POA for a relative and I disagree with the discharge team at hospital.

Relative is 93, has no capacity, no idea what's going on and lives upstairs flat. I think it would be dangerous to send her home.

Brief phone call today indicated the team think home with carers is acceptable

I did not realise that when the decision needed to be made about a care home it might not be my decision.

I'm struggling to find out whether my POA means I can disagree with the team at the hospital or if I have to accept their choice.

Any ideas?

https://www.gov.scot/publications/adults-with-incapacity-act-principles/

Liaise with the hospital and ask where they have met their duty to consult you under principle 4 of the Adults with Incapacity (Scotland) Act 2000.

What @Tahinii said.

Also the Mental Welfare Commission have an advice line:

0800 389 6809

They aim to support carers to protect the rights of people with dementia and other conditions.

Thank you this looks quite helpful.

That's great. Thank you

The information I have found and my professional experience relates to England so not sure it’s exactly the same in Scotland or not.

My understanding is that the person with LPOA is the decision maker and that can’t be overridden by discharge team or social workers!

I have had situations of not necessarily agreeing with the decision of a family member with LPOA and have been advised by various parties that court of protection would be the only real avenue of recourse and there has to be something significant for that! Most differences are resolved through communication and that’s always been successful in my experience thankfully.

The challenge may come if the hospital say she is ready for discharge on this date and they won’t keep her longer whilst you source placement.

In this instance general hospital Trusts seem very harsh, much more so than my experience in mental health where we don’t tend to do things like that and always aim to fully involve family. This can lead to delays in discharge at times unfortunately but it’s often very complicated!

@Doyouthinktheyknow

The challenge may come if the hospital say she is ready for discharge on this date and they won’t keep her longer whilst you source placement.

They are saying they are looking to discharge to home with a care package and saying that discharge to care home or interim care is not an option. I am looking for evidence that the final say is mine and not theirs. It doesn't seem to exist though

What area are you in? Speak to your local Carers Centre, some have a hospital link worker who specifically work with Carers whose cared for are leaving hospital but all have Carer Support Workers and legal clinics to advise you.

re the POA it doesn’t sound like it has been activated. I know you say you have the POA for over 10 years but you need the certificate of incapacity from a medical progression to activate it. You will be then given an online account as every time you use it You need to show a certified copy. If you don’t have this you don’t have an active POA.

Also do they have the resources for the 4 x daily PoC. I have people on my case load who have been ready for discharge but they can’t source the PoC so I would say you have to look into private carer homes. Your Carers Centre should be able to offer advice arround the financial assessment too.

Just wanted to say I understand your frustration as I've fought off two unsafe discharges of my SM who has sudden onset delirium and has now been in hospital for three weeks.

Different situation and I'm in England, but want to say I broadly echo your sentiments regarding the safeguarding aspects of discharge as the law says "least restrictive option" first in situations which are patently unsafe. There is no POA for SM as she would never entertain the prospect and now my physically frail father is facing potential homelessness depending on a best interests meeting and possible Court of Protection involvement.

It's complicated but I've had invaluable advice in many areas on the Elderly Parents board from veterans of elder care .
Lots of good advice here but I would echo that PALS are a helpful recourse.

Aside from that I just want to wish you all the best moving forward as until you're in it it's impossible to fully understand the apparent utter batshittery in this area.

Much love and solidarity ❤

From my experience last autumn trying to find a nursing home for FIL in Fife, I'm assuming they're pushing home care, because there may be some delay getting a space. FIL with dementia was admitted to a community hospital, thanks to his GP seeing that MIL was completely broken, FIL lost the ability to stand unaided and the home care were only providing one carer who couldn't move him on their own But he was in the community hospital for over 5 weeks, before finding a home that would take him. That was with him being self funded. Closest home that would take him is 20 miles from his home and eye wateringly expensive.
Phone nursing homes this weekend and phone the council adult social care on Monday.
It is shite.

Oh and ask the homes if they can do respite and how soon, just to get some breathing space.

@Kaffiene

Is that in Scotland re the POA as I have never come across the need to make an online account?

There is absolutely no question over the POA. Everything that needs to be done has been done.

When FIL was discharged recently (England) they sent him home by ambulance and an assessment team came at the same time to check if the home was manageable for him. The stairs were not suitable so he was taken to a local care home for respite care while we sorted which care home was best for him longer term (self funded as he can afford it)
The one option that was not possible was for him to remain in hospital or NHS care as he was deemed medically fit despite his dementia. It sounds like you may have a similar situation so you can control where she goes but just not state funded options like community hospital

Have you asked the question - why isn't a care home appropriate? I'd be interested to know what objection they could have?

We recently had this with FIL. We told the discharge team that we were self funding and felt home wasn't safe so we sourced a care home ourselves. End of conversation.

I viewed 5 care homes in one day, chose one, gave the details to the discharge team who arranged the assessment and the next day he was moved there.

On a practical note, do you have sole access to her money? Frankly, you can't be instructed to pay for a home care package that you don't agree to. You can tell them that you won't agree to pay for home care.

One final thing - in theory if they somehow insist on home discharge what is to stop you taking her to a care home the next day?

They are saying she is fine for discharge to home. They are meeting on Monday morning. They are not listening to me so I don't know how to stand up and say 'actually no, that won't be happening' and I need to find something that tells me I can do this/. They are juts leaving me with your concerns are noticed

Just look for a nursing home and move her into it when a place becomes available in your chosen home. Tell the hospital staff you have welfare POA and this is what you are doing. You can do this from wherever she is, hospital, interim care bed or own home. That's what we did with MIL in Scotland.
My DH had Poa so he just took charge and did it himself.

But you really should have been looking for places and got her name down since she was admitted to hospital if that's what you want. It can take months for a place to become available

https://www.gov.scot/publications/code-practice-continuing-welfare-attorneys-second-edition-updated-february-2018/pages/6/

Section 5.4 - 5.48 perhaps?

Also it might be worth seeing if there is an advocacy service available, I got details of my local one from Age Scotland.

I don't know why you are excluded from the team meeting, we have one coming up and the attorney has been asked to attend by social work. I would press them to explain their reasons for not including you and ask for this in writing.

@MixedPeel27

Have you asked the question - why isn't a care home appropriate? I'd be interested to know what objection they could have?

Yes but I just keep getting told over and over that it's not an option for someone who has no carers before. She had no carers before becsue I was doing it all and trying to avoid brining in people she didn't want. She has taken a massive decline after being unwell and is no longer safe to be at home imo

We recently had this with FIL. We told the discharge team that we were self funding and felt home wasn't safe so we sourced a care home ourselves. End of conversation.

I only for a few minutes phone call with them and never for much chance to discuss but I asked who makes the funk decision and she just said something else to take me away from it

I viewed 5 care homes in one day, chose one, gave the details to the discharge team who arranged the assessment and the next day he was moved there.

I had no idea this was an option and have just found out now it's Friday evening. I'm going to see what I can find out over the weekend

On a practical note, do you have sole access to her money? Frankly, you can't be instructed to pay for a home care package that you don't agree to. You can tell them that you won't agree to pay for home care.

They haven't discussed financing with me so I'm not sure how much would be paid for as in Scotland certain care is free. I am the only POA though, yes.

One final thing - in theory if they somehow insist on home discharge what is to stop you taking her to a care home the next day?

The stairs. Literally.

https://www.legislation.gov.uk/asp/2000/4/section/3 Section 3.3 is what is referred to in the thing I linked to just now section 5.4 about challenging a decision. Looks like legal measures but I know nothing about these things.

She has been in for 8 days

Telling me what I should have been doing is not helpful.

In fact it's really horrible

I had no idea this would happen as everything I read said they would
Give me the information. There is actually a procedure where social services proves the details and you choose form 3 homes

I'm already thinking I am not good enough for her ffs

I think FIL gets approx £300 per month through the council. His attendance allowance stopped.
His nursing home is £1650 a week....

I don't really understand that it's about court and sheriffs

Thank you. I am going to raise this on Monday becsue I feel completely excluded and have die at every stage

Thank you. I appreciate everything here. I'm exhausted tonight and the understanding comments are helping.

I had no idea it would be this much of a challenge

It's awful dealing with this. The emotions are hard enough and trying to get straight answers out of the social worker sometimes was mental.
Have to say the hospital, although desperate to get the bed back were great. It was in some respects easier with FIL as he clearly couldn't go back home

Thank you I will do this, also your further comment about respite is something to look into. Community hospital for a bit of breathing space is what I'm pushing for actually