Human rights social work challenge though PoA in place?

[Viewfield]

Hi, I was wondering if anyone has any advice on the following...
In April my mum's GP signed an incapacity certificate. Our solicitor confirmed that welfare and financial PoA were now activated. At the start of June, the same GP told Mum that she was no longer safe at home and needed to move into a nursing home. She had not had an allocated social worker or home care package because she had refused all such interventions - for context, an OT visited in March but said she was unable to do an assessment. I made repeated calls to social work and it took 3.5 weeks for a social workers to be allocated. Towards the end of that period, I started contacting care homes, and was offered a place for her with a fantastic home. She was not at all keen to go, but was admitted last Monday and is settling better than expected. She is complaining, but cooperating, taking part in activities etc.. However when social work finally did the assessment with me (last Tuesday, the day after she entered the home), they said they were concerned that her human rights hadn't been observed. On Friday they told me that there would be a meeting in two weeks time with the mental health officer, predominantly I think around trying a home care package. My mum is totally resistant to home care and has zero insight into her condition or why it's required. A home care package would be a nightmare to manage. Social work told me to get an interim guardianship order and a solicitor and a legal secretary I spoke to this modern are baffled as to why this is required if I have power of attorney. What is the legal basis for needing this? How far is this likely to run. Mum's consultant says that '99.9% of the time these things sort themselves out' and is providing an incapacity report in addition to the GP's certificate but I'm really stressed. The frustrating thing is that (thankfully) the home are supportive and Mum is settling. Thanks in advance.

Back with an update on my own question in case it's useful to anyone else in the future (we're in Scotland)...
I phoned my mum's psycho geriatric consultant who explained that a PoA gives you to the right to determine someone's address but not to keep them there if they decide to go. They have the right to go under the European Convention of Human Rights. Force can only be used 'if immediately required' and beyond that to stop someone going you need a compliance order, and that order can only come on the back of a guardianship order.

That seems crazy. She won't have in home care and you don't believe it's suitable, and she doesn't like the nursing home- where do they propose she goes? I'd offer to pack her a bag and she can stay with the social worker....

We’re going through a similar process (but in England so the terms are different). DM is in hospital but wants to go home (she lacks capacity and the best interests meeting was clear that she couldn’t cope at home).

However, as we are effectively “depriving her of her liberty” we need to go through the DoLs process. We’ve had an assessment that a DoL is justified but social services have to appoint a representative to challenge that on DM’s behalf.

I can understand why they need the safeguards in place, but it is a whole new world to get your head around! Luckily all the social work, OTs etc have been really supportive for us. I hope you get the support you need- it’s very stressful

I know, @SD1978, my thoughts exactly - that or give her his phone number (she phoned me 51 times in one day recently).

@Toofaroutallmylife I'm sorry you are going through this too. Thanks for letting me know about your situation. Yes I'm hugely stressed.

I've now got the number of a specialist lawyer in my city, who has come recommended, and hopefully they will phone me back tomorrow and give me decent advice. I want to stress that at no point has any physical force or restraint been used with my mum.

I sympathise, but the p o a does not give you an absolute right to determine where your DM lives against her clearly expressed wishes - and if your solicitor thinks it does you might consider getting another solicitor.

Your DM may only have limited capacity, but if she clearly expresses a wish to stay in her own home you and any social workers need to take that into consideration.

The bar for depriving someone of their liberty is, rightly, set very high. People can choose to do things which are not in their best interests - eg smoking, drinking, over eating, under eating, not accepting medical intervention, discharging themselves from hospital, hoarding, etc. Many people do this - even though some have limited capacity and most would judge it to be in their best interests to take another course of action.

The argument that a home care package would be a nightmare to manage is not a justification for keeping her in a residential facility against her will - particularly when options have not been explored with social workers and district nurses who have experience in this field.

this is a bit shocking

I can't say I have any experience but I'm thinking that if the social care team want her to go home, and she wants to go home, then they have to take full responsibility.

in reality, I realise you might not want that, but you might need to tell them to do that. Does that make sense?

I do understand that the bar is set very high but I thought the whole point of LPA and capacity was that the bar was met!

@triathlon999 Fair enough and useful to point out. I was following the opinion of a GP and luckily now have found a specialist lawyer... but the field is obviously a lot more complicated than I thought (and it would be fair enough to say that maybe the GP needs more guidance in this area). Do you happen to know what the situation is, if she clearly refuses to have a package of home care as is her case at the moment (to be honest she is more clearly refusing that at the moment, than staying in the home)? Would they then not send in a package? I cannot return to the situation that I have been providing for her for 3 years with a total of about three days off and which is affecting my mental health and our family.

When I say three days off, I mean I have had a total of three days real respite from my mum over three years because she cannot hear of me having a break, and I've found no other solution to it other than kindness of a handful of her friends who increasingly cannot cope with her behaviour.

@rosawaiting It does make sense. What I cannot do, is return to full responsibility for the situation. I just can't. I could potentially agree to providing say x hours per week care and then pay a home care company to fill in the remaining y waking hours, topping up the local authority package. But I just can't see how it would work, given that Mum would potentially refuse to let the carers in, might ask them to leave the house and other challenging behaviour. What staff can manage on a rota, would be a pressure cooker at home.

one of my friends actually told a nursing home and social services to never contact her again regarding her mother.

she still got contacted but less often. It effectively meant that decisions she would never endorse would not be left at her door.

I would say to them that you cannot cover any hours at all. Or even say you will not, rather than cannot.

is her care home place paid for by the local authority? I'm wondering if this is really about saving cash.

Mum has sufficient assets to pay for the home, for five years. By delaying her admission, it would delay the local authority paying fees when her funds eventually run out. But from what I've learned today, there is a legal point here.

Usually POA with a power to decide place of residence would be enough to move a person into a care home once incapacity has been certified. I’m not sure I understand what the issue is? Does the social worker not feel that she requires a care/nursing home? They need to agree in order to access free personal care. Does your mum still want to go home?

@aurignacian, the social worker agrees she needs care. The local authority seems to have had a recent case where a son moved his mother into a home, the council ended up taking out a court order to move her back home and she is now doing well on a home care package. He has mentioned this twice to me, plus that statisically people live longer at home. But I reserve the right to think that my mother's case has differences to the one he is talking about. No-one is doubting that the PoA is in place, or that my mum lacks capacity, or that she needs care. It is more about where that care is delivered, I think. She is more settled in the home by now. She has never at any point attempted to escape, been terribly distressed or had any physical force used against her.

Is your mum asking to leave the home?

It is a mix. Yes, she does say that she wants to go home. She has also asked to buy a flat in the home and said it could be fun to be there. She wants to move back to her home city (not a remote possibility). I've mentioned carers at home and she does not want that. The tricky thing and I appreciate that this is not helpful in this legal context but my mum is not happy anywhere. She was not happy at home either.

You can discuss it all with the MHO but unless your mum is consistently expressing a wish to go home there’s no clear need for guardianship. If your mum can’t manage with a care package at home and you’re not able to provide additional support then it’s not unreasonable for you to move her into a care home.

Thanks @aurignacian - that sounds reassuring.

I don’t think you’ll have any problem with this once you’ve spoken to the MHO. Your mum lacks capacity to decide where is best for her to live, she can’t safely manage at home even with a maximum care package and you have POA in place. I really don’t think you need Guardianship but the MHO can advise and of course you can also discuss with your solicitor.

This is my area of work btw

I'd actually been about to type 'this sounds like your area of work'. Thank you again.

What I cannot do, is return to full responsibility for the situation. I just can't. Nobody can require you to do that. Stand your ground and say you are no longer able to provide any support at home.

Thanks @MereDintofPandiculation I know. There seems to be such an expectation that relatives will provide care.

I spoke to the (excellent) lawyer this morning who was not convinced guardianship is necessary (it would cost £1k anyway from Mum's estate even with legal aid) but will be able to help me if need be. The conversation reminded me that I twice requested a carer's assessment from social work but was never given one despite being promised it.

There seems to be such an expectation that relatives will provide care. I found that once I stood firm and said, eg "No I cannot stay overnight with him" it was accepted, there was no attempt to guilt-trip me.