Decision Date: 1st July 2020
Mrs X and her family had lots of contact with their local Council because her husband, Mr Y, and two young children, suffered with physical health problems.
In July 2019 Mrs X requested the Council assess her and her husband under the Care Act. The report did not specify her reasons for doing so.
An assessment officer phoned her a few days later, on the 11th July. Mrs X told the LGO that this caller did not say they were an assessor and that the caller refused to carry out an assessment, which is why she initially complained to the Council.
However, the Council stated in its reply to her complaint, that the caller had indeed introduced herself as an assessor. It said that Mrs X had explained her and Mr Y’s needs but wanted a home visit. It said the Assessor explained the Council did all assessments by telephone and only arranged a home visit if it thought it was necessary and the person was eligible for services.
The Council said that Mrs X raised her voice and called the Assessor a “monkey, a slave and a zombie who only listened to managers”, then said she would make a complaint. The Council said it had closed her assessment as she had refused to participate. It highlighted that it had carried out an assessment of Mr Y in May (two months prior) but closed the assessment as Mr Y was not eligible for services.
Mrs X replied, denying all allegations made against her. She asked for a transcript of the call and made a date access request for the recording.
The Council replied it did not record calls and did not have any transcripts of her conversations.
Mrs X complained to the Council again on the 31st of July, stating that she still had not been assessed, and continued to deny the allegations of name calling.
The Council replied on 11 September. It apologised for the delay. It said Mrs X had not cooperated with the assessment because she ended the telephone call but would now arrange an assessment for her and husband at their home. It said there was no evidence of the alleged abusive language, so because it could not substantiate this, it should not have referred to it in its first letter. It apologised for this.
The Council assessed Mrs X and Mr Y in September 2019.
Mrs X complained to the LGO, because she wanted the Council to amend its records.
What was found
The LGO recognised that the Council had acknowledged it had no evidence of the allegations it put forwards and apologised to Mrs X. However it had not addressed the distress it caused her.
The Council has a duty to carry out Care Act assessments. The Council was at fault for stopping its assessments of Mrs X and Mr Y. The Council did not start the assessment process again until two months later in September. This delay caused Mrs X and Mr Y injustice as they had to wait longer the necessary for the Council to assess her needs and potentially meet them.
The Council agreed to:
- Apologise to Mrs X and Mr Y for the delays in their assessments.
- Pay Mrs X £150 for accusing her of using offensive terms when it had no evidence to substantiate this.
- Pay Mrs X and Mr Y £150 each for the delay in their assessments.
Points for the public – especially during Covid
The duty to assess is not a duty that can normally be rationed on account on insufficient time or staff. It’s a duty that is triggered once an authority has evidence of the appearance of needs – any needs for care and support.
Then it’s a matter of professional discretion and judgment as to whether the presenting needs compel a face to face assessment – there is no duty to do a face to face assessment. The manner and timing must be person-centred, but the way in which to do an assessment, as long as the minimum thought process is gone through as per the statutorily listed issues, is up to the council. The guidance says that a person’s cognitive impairment from whatever cause may well make it necessary to do an assessment face to face, and that applies even during Covid, unless a council has adopted Easements.
It’s not lawful just to say ‘We’re not doing face to face assessments’, or ‘not doing assessments’ during lockdown. It’s a job, it’s a process, it’s a duty, and the world has not ended. Even a council that had adopted Easements would still have to make human rights based decisions about who to assess and how.
Councils’ own duties in relation to their own staff do not justify saying that assessments are suspended just so that nobody is at risk of contracting or passing on Covid.
Case law has already considered advocacy and Mental Health Act assessment during the pandemic, and it must always depend on the presenting needs, whether a non-face to face will do the job required under the Care Act.
The judgment regarding the MHA process overturned NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic and may require professionals to reassess people detained under the act on the basis of video assessments.
The reason the judgment went the way it did in the MHA case was because the WORDING of the legislation is compellingly strict : s 11(5) MHA provides that an application by an AMHP cannot be made “unless that person has personally seen the patient within the period of 14 days ending with the date of the application”. In addition, s13(2) imposes on the AMHP an obligation “to interview the patient in a suitable manner”. Section 12 provides that the medical recommendations required “shall be given by practitioners who have personally examined the patient”.
The MHA code of practice provides that a medical examination for these purposes must involve “direct personal examination of the patient and their mental state”.
Those exercising functions under the MHA are obliged to follow the code unless there is a cogent reason to depart from it. The references to “personally seen” in section 11(5) and to “personally examined” in section 12 date back to the 1959 Mental Health Act and were then replicated in the 1983 Act.
These were the important features in that case, that will not necessarily be the case in the Care Act context, where advice and information should have been provided in advance, no risk of detention (other than deprivation of liberty under DoLS) is concerned, and the person’s particular difficulties taken account of and advocacy arranged:
- Where a law authorises the deprivation of a person’s liberty without recourse to the courts (“administrative detention”), the powers are to be construed “particularly strictly”.
- Parliament in 1959 and 1983 would have understood the medical examination of a patient as necessarily involving the physical presence of the examining doctor, confirmed by the fact that a psychiatric assessment may often depend on much more than simply listening to what the patient says but on picking up cues through body language or carrying out a physical examination. There would have been no other option at the time.
- The statutory history of the words used in the MHA (dating back to the nineteenth century) shows that they were intended to be “restrictive and circumscribed”, to address the problem of doctors certifying people as liable to detention without having seen them.
- The fact that the code of practice requires physical attendance and NHS England’s Covid guidance makes clear that in person examinations are always preferable shows that medical examinations should ideally be carried out face-to-face. The decision whether to allow video conferencing involves balancing the need to ensure objective evidence to justify deprivation of liberty and maintaining the system of MHA detention during a pandemic, which is a matter for Parliament, not the courts.
- The use of video conferencing could remain in force for some time after the end of the current pandemic. Again Parliament, and not the courts, can best address these matters, including by considering whether the changes should be time limited.
If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.
The full Local Government Ombudsman report of Royal Borough of Greenwich’s actions can be found here