The BBC is currently showing a documentary series about the complex and often harrowing decisions that need to be made in relation to the care of older people within the community.
The latest episode, shown last week, highlighted the difficulties of supporting an increasingly frail elderly couple who wished to remain in their own home and who could not afford to fund private care services. They also had no relatives nearby who could assist them.
The programme follows Mr and Mrs Price, both in their 80s who have lived in their home for 50 years. Mrs Price was bed-bound and received the maximum level of home care that her Local Authority were able to provide. This consisted of a series of 15 minute visits throughout the day. However, due in part to Mr Price being unable to assist her due to his own infirmity, Mrs Price had called 999 over 150 times in 2 months seeking further assistance.
The programme then follows of the efforts of the Local Authority to seek the most appropriate place for the couple to live given the competing considerations of cost, the couple's wishes and their best interests.
The programme also discussed the difficulties that arise where there is dispute as to someone's capacity to decide where they wish to live. Like many Local Authorities, Birmingham Council shown in the programme, does not offer 24 hour care in people's own homes. Therefore when a persons needs are considered to be at this level very difficult choices often need to be made about where that person should live.
Under the Mental Capacity Act 2005 the capacity of service users to make such decisions needs to be assumed. If a person is considered to have capacity their decisions need to be respected even if they appear to be unwise or unusual. This also includes instances, as shown in the programme, where there is an unresolved dispute about whether a service user has capacity.
If the Local Authority believe that someone may lack capacity then an assessment of this needs to be undertaken by an appropriate professional as demonstrated when Mrs Price was in hospital during the course of the episode. This assessment also needs to be in relation to a specific decision- ie where someone should live. Where it is thought that someone's capacity is changing this needs to be monitored as shown in the programme Mrs Price underwent a series of assessments throughout her stays in hospital. As shown in the programme this assessment has a number of factors including the ability to retain important information in relation to the decision.
In the case of Mr and Mrs Price the decision was ultimately to keep them in their home. However these decisions are always difficult and can be compounded by unfamiliar processes and on some occasions, particularly where there is a dispute with the Local Authority, Court of Protection proceedings.
By Emma McClure, civil liberties team
If you or a family member require advice or assistance in relation to disputes with a local authority for all aspects of care needs, care home fees, court of protection proceedings, capacity or best interests disputes please contact us on 0333 344 4772.