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02 Jun 2017
Forth Valley Stronger Together

In our last newsletter, we highlighted the use of Section 13ZA, part of the Social Work Scotland Act which was designed to allow councils to help people without capacity to leave hospital and settle in new homes in the community.  We were worried about the use of this legislation to unfairly move people with learning  disabilities from their own home in the community into residential care (see box).  And read our original report by clicking here

We asked councils across Scotland how often they used Section 13ZA to move people. 

Only 3 of the smallest councils in Scotland and 2 medium sized ones (South Ayrshire and Argyll & Bute) were able to give us some figures.  Argyll & Bute  and Clacks both said they had used the rule to move people with learning disabilities from their own homes.  The other councils didn’t keep information which showed the client group of people affected. 

The other councils said that they wouldn’t tell us because they didn’t keep the information in an easily accessible way.  Most said it was recorded on paper files only and it would take too much time to get to it.  A few didn’t record the use of 13ZA at all!

This surprised us because we have found 2007 guidance from the Scottish Government which says that local authorities have to keep records on the use of Section 13za in an easily accessible data storage system linked to their other computerised data so that the Social Work Inspection Agency (now the Care Inspectorate) could check what was happening. 

“Local authorities may want to review their local protocols and, in addition, may need to adapt their case record data collection programmes in order to account for cases where the local authority has used its power under section 13ZA of the 1968 Act to provide services”. 

Possibly local councils haven’t read this guidance.  Or possibly don’t realise the importance of making sure that people who are moved without their consent need full and proper protection. 

 

 

A PATIENT who died days after he was denied hospital care because he had a learning disability has sparked a major review of NHS services in Lothian.

 

 

The Mental Welfare Commission for Scotland said the man was the victim of discrimination after a Royal Infirmary consultant declined to carry out an in-depth medical investigation because he assumed it would have caused the patient distress or led to a “deterioration of his behaviour”.

The investigation, the results of which have been sent to NHS boards across Scotland and are being examined by the Scottish Government, also found that poor communication between health professionals had meant vital warning signs that could have pointed doctors to diagnose the fatal condition were missed.

Dr Donald Lyons, chief executive of the Mental Welfare Commission for Scotland, said the conduct of the consultant who sent the patient home from hospital had struck a nerve with him personally.

The Scottish Government has just announced plans to exempt all care and support arrangements from the requirement to advertise and competition.  This will come in an amendment to a new bill and will not be law for some time yet, probably later in 2014 but public authorities should see this proposal as the direction of travel and abandon plans to tender care services that that they are currently considering.

Nicola Sturgeon made the announcement to the Infrastructure and Capital Investment Committee of the Scottish Parliament as part of its scrutiny of the Procurement Reform Bill at Stage 1 on the 11th of December:

“Having listened to the evidence, it is our intention to bring forward an amendment to the Bill at Stage 2 which will exempt health and social care contracts from the provisions in the Bill which relate to advertising and competition, and I hope that will go some way to addressing the concerns that have been raised…where an authority does choose to hold a competition for these kinds of services, it is important that some provisions in the Bill will still apply.”   This will particularly exempt health and social care from the “mandating of that competition”

In the committee MSPs spoke about the “merry-go-round” of care services that puts a lot of pressure on the third sector.  They were worried that “ tendering for  care services was being  driven by cost rather than quality, which is driving  down pay and conditions for workers and causing a high staff turnover rate” 

Many of us share these worries and there has been much campaigning and lobbying over the last 5 years by Learning Disability Alliance Scotland,  our friends at CCPS and others.   We fought a big campaign against tendering in Edinburgh and supported challenges to care tendering in Ayrshire and Lanarkshire.   It’s really good news that in the future that authorities will have more discretion as to whether or not they put contracts out to tender (or, more likely, re-tender); and less discretion about how they conduct tenders, should they choose to use competition.

Now no one really needs to have to worry about their services being tendered out from under them. All local councillors need to know this and this will be especially so for those councillors in Edinburgh who are thinking about plans to tender supported employment services in 2014.  Time to think again!

The Use of Section 13ZA.

Section 13ZA was a recent addition to the Social Work (Scotland) Act 1968.  It was designed to end bed blocking in the NHS.  Many older patients with dementia no longer had the capacity to consent or disagree with a decision to move into a care home in the community.  As the guardianship process took so long to conclude, a large queue built up.  13ZA allowed social work and other interested professionals to act quickly in the person’s best interests.  This was in line with the principle of “least invasive” intervention.  

However there have been some recent concerns that Section 13za could be used to move people with learning disabilities from individual tenancies to cheaper care home placements.   Many of the people who use support services  are now over 65 after having been in long stay hospitals for over 20 years of life.  But these placements are relatively expensive compared to care homes for older people.  

Our 2011 report “Stuck” looked at the experience of people with learning disabilities who had been placed in Care Homes for Older People.  There were many problems—lack of training, communication difficulties and significant age gaps between residents

  As social workers are purchasers of care home placements as well as the operators of section 13za actions, there is a fear that unless basic safeguards are put into place then people may be unfairly moved.  

Problems 

Some of the problems that have emerged are over the practice of applying the legislation.  

1.    In section 13za cases decisions are taken by interested professionals e.g. social worker, nursing staff, occupational therapists. Advocates are not being treated as “interested professionals”.  This means that while local authorities will pay “due regard” to the view of advocates and provide them with minutes of the decision making meetings, they cannot be part of the decision process itself.  

2.   Decision making often does not require the active agreement of all interested professionals.   In Section 13za meetings the process can be a proposal and a general request for dissent.  If no voices are raised then agreement is assumed.  This can allow the “possible conflict of interest” between a social work manager as the purchaser of care services and the social worker as the arbiter of an individual’s care to remain unstated. 

    A third concern is that care plans are often not agreed in detail prior to a section 13za decision being agreed.  The care plan can be as broad as a “moving to a care home” or moving “to the first available place out of a group of 4 care homes.”   The legal duty is clear that there has to be agreement on the exact future care prior to considering the use of section 13za.  

The Mental Welfare Commission is worried that there is a lack of sufficient safeguards.   They found  that local authorities are already falling well short in supervision of Welfare Guardianship under the Adults with Incapacity Act and that local authorities do not routinely monitor the use of 13ZA at present.  There, in fact, is no one monitoring the use of 13ZA in Scotland. 

The Mental Welfare Commission has just carried out a survey about what life was like for people with learning disabilities who need intensive support in the community.  They found a lot of good things about it but there were a number of things that had to change because they were not good.  You read the full report here.  But down below we highlight the things that need to change.  

They thought that some people needed better care and support, to help them live happy and  independent lives, and make friends. All care and  support staff should be well trained and managed.  We found that some were not.

Services have to be the best they can be. Local  authorities must keep looking at the care and  support they give and make sure the service user’s  rights are being protected.    

Housing

Some people weren’t happy living together. It  should be possible to move them to new homes  with people they like, or let them have time away from the people they don’t get on well with.

Support

A small number of support plans were out of date  or did not meet all the needs of the service users. Some plans were quite good but more could be done to make them even better. 

Social lives

Service providers should help people to make friends. Some service providers were doing a good job of this, but most service users still said they didn’t have friends. Families should be involved more because they are very important in helping people to have social lives.