Brain Injury Group - Court of Protection Training Day

Written by Jo Throp Posted in Blog

Brain Injury Group - Court of Protection Training Day

A neuro OT review part one

Brain Injury Group – Court of Protection Training Day

13 November 2018

The Brain Injury Group at their recent training day decided to tackle the complex issue of capacity. The day was opened with an overview of the common problems faced by Professional Deputies when dealing with an individual’s property and affairs.

A Deputy is required to make decisions on behalf of a person who lacks capacity, and as part of their role they must conduct a best interest analysis regarding how that client’s money is spent. It was highlighted that the Mental Capacity Act (MCA) does not support generalised assumptions, but rather professionals must look at the best interests of a person for a particular case. The day was useful and informative, not only for case managers and legal professionals but also for those neuro OTs working with clients who lack capacity due to their brain injury.

Brain injury, young people and education

One interesting point of discussion was the requirement of Deputies to plan for a young person’s education following their acquired brain injury. It was discussed that if a child has special educational needs, the local authority must make provision to support the young person’s educational needs up to the age of 25.

Case examples were discussed where Deputies of young people (between the ages of 18-25) have been approached by their client’s local authority. The Local Authority have stated that money should be put aside from the individual’s award, advising that they should be spending their own, or a percentage of their own money on education costs.

It was discussed that The Children’s and Families Act sec 42 (5) is being used by Local Authorities to encourage individuals (and Deputies) to use these funds under the guidance of making ‘suitable alternative arrangements’ and, therefore, passing the responsibility of care.

A word of caution was offered, however, advising that there may not be clear exposure regarding the award and how funds were apportioned. In addition, it was highlighted that different local authorities are taking different approaches to this, and what is being seen in practice is a postcode lottery of education provision and approaches.

Deputy Head of Public Law Group at No 5 Barrister Chambers, Ian Brownhill however, stated that any actions or decisions about spending an individual’s funds ‘must include arrangements which are financially secure (at least for a realistic period)’. He, therefore, offered a word of caution stating that clinicians and case managers must ensure that proper consideration is given to all options and associated costs, to ensure they are affordable now and into the child’s future.

The value of pets and other considerations for neuro OTs

Introducing the case of Bobby, the dog!

Animal lovers have known for some time the benefits of pets for enhancing quality of life and general wellbeing. The case of Mrs P was discussed.

Mrs P had worked her whole life, owned her own home and lived independently with her dog Bobby. Bobby the dog was a significant source of comfort for Mrs P being her only companion in her later years. Mrs P sustained a significant stroke (CVA) and was moved to a nursing home under a Deprivation of Liberty Safeguard (DoLS) Authorisation. The Court of Protection appointed a local solicitor as a Deputy.

Given the fact that Mrs P was no longer living in her own home the decision was made by her Deputy to remove Bobby the dog from Mrs P’s care and keep him housed in kennels; the rationale given was that a nursing home was not a suitable environment for a dog to live or visit. This significant decision had a considerable impact on Mrs P.

After a period, it was decided by the Deputy that it was not in Mrs P’s best interest to continue to use her funds to keep the dog in the kennel and, as such, he arranged for the dog to be given away to new owners. The Deputy had made the choice without consulting Mrs P and gave away the dog without any thought to the consequences of the impact on Mrs P’s emotional wellbeing.

It also became clear that the nursing home was not a satisfactory environment for Mrs P. Her health needs and previous wishes and lifestyle were not being considered as part of her day to day care, and only limited funds were made available from the Deputy to support her additional needs.

The consequences of these decisions had a significant impact on Mrs P. Not only in relation to the inappropriate care she was receiving within the current nursing home but the decision regarding the placement of her dog, Bobby. The relationship with Bobby was later commented on by her Social Worker who stated that this ‘was the single most significant relationship in her life’, and her recommendation was that Mrs P should have ‘continued contact with Bobby, if possible’. Sadly, this recommendation never came to fruition, during Mrs P’s time at the nursing home Bobby had been re-homed and therefore it was not possible to reunite her with her four-legged friend.

The courts, understandably, took a dim view of this course of action and the decisions made by the Deputy. When asked to comment, the Deputy’s firm wrote:

‘In the absence of any factual information about Bobby, his owner or the home’s policy on animals, it would seem irresponsible in the extreme to suggest that a dog visits a care home for elderly and frail people.’ They also stated, ‘It was unrealistic to expect the lady to bring the dog to [the nursing home]’.

It was considered that the Deputy was failing to meet Mrs P’s needs in relation to her stroke (CVA) and her emotional welfare. Dismissing the Professional Deputy, the judge commented on the lack of care given to Mrs P, including a complete disregard for her needs and wishes.

The treatment Mrs P received failed to meet her basic needs, this case highlights the importance of all professionals, including neuro OTs, ensuring that at all times our client’s needs and wishes should be at the forefront of our decision-making process.

Read part two here Brain Injury Group - Court of protection training day review - Part Two

About the Author

Jo Throp

Jo Throp

Jo Throp is a neurological occupational therapist and clinical director at Krysalis Consultancy - an established nationwide specialist neurological occupational therapy consultancy which provides community-based rehabilitation and vocational rehabilitation services.

Jo is a practicing clinician with a passion for occupational therapy. Since qualifying in 1997 she has worked within the specialist field of neurology and has extensive experience of setting up and managing both community and inpatient multi-disciplinary neurological rehabilitation services, within both the NHS and independent sector.

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