MCA case study - man in his late 40’s

Produced by: NHS London Purchased Healthcare Team
Supplied by: NELFT NHS Foundation Trust
Hosted on: National Mental Capacity Act (MCA) Directory

DW is a man in his late 40’s who as a result of a very violent assault approximately 5 years ago now lives with significantly reduced mobility, a head injury and continence management complications.

Following his lengthy rehabilitation in hospital he was placed in a residential facility for longer term care. His sister took it upon herself to remove him without any preparation and planning and install him in her own home where she resided with her three adolescent children (18 year old male, 17 year old male and a 13 year old female). The family had been housed after fleeing domestic violence with the children’s father named as the perpetrator.

There was neither adequate space nor facilities for DW’s needs at the family home and DW’s sister had negated to bring his wheelchair or any other mobility aids. A safeguarding adult’s alert (the first of many) was raised and it was established that DW’s capacity in respect of choosing to reside with his sister and her children was not in any doubt at this time as despite his injuries, his cognitive functioning was largely unaffected.

A number of safeguarding children’s issues were raised in respect of the three teenage children, triggered by chronic school non-attendance and concerns regarding the conduct of the young people.

With DW in the household the family were rehoused to a larger property that was adequate to all their needs and DW was afforded a care package of 2 male care staff three times per day. DW’s finances were being managed by his sister and she was able to utilise a Motability car in his name. The children’s father moved into the household and became DWs carer apparently at his ex-partner’s behest, despite the (alleged) history of Domestic Violence.

Feedback from the carers was of a volatile household with high expressed emotions the norm. The two older teenage boys were rarely seen outside of their rooms and did not engage in education or any other constructive activity. The younger girl and DW were often at loggerheads and the carers also reported her to be scantily clad, chain smoking and in no way curbed by her mother during their visits. DW expressed concerns from time to time that he could not access his benefits, and the carers were not able to access DWs Motability car for his benefit. Any attempts to converse with DW by social workers were blocked by his sister; she tended to speak for him.

The situation came to a head when DWs sister made a complaint regarding the local mental health services and it became apparent that DWs sister had been using the complaints process to evade any attempts to address the myriad of difficulties the family as a whole presented with. For example, she made multiple complaints regarding individual carer staff in order to have them replaced when they question her treatment of her brother.

A series of multi-agency, multi-professional meetings that involved adults and children’s services from community health, mental health, education and a wide variety of different local authority departments took place. These resulted in the formulation of a coordinated response that sought to engage the teenage boys, protect the teenage girl and fully assess DWs capacity, wishes and needs in the absence of coercion and undue influence of his sister. This work is on-going, complex and was supported by a blended chronology of all family members from all services involved which was able to demonstrate the pattern of behaviour orchestrated by DWs sister. These will support court applications for legally sanctioned interventions in due course.

This example illustrates the empowering aspect of the application of the Mental Capacity Act 2005 in that where an adult is making a decision that others deem unwise, if they are doing so with full understanding there are limited grounds for intervention by public bodies. The rights of the adult to act in autonomy are enshrined in much of the underpinning legislation in the UK and harks back to the European Convention on Human Rights. Often in such a situation, as this example shows, Court intervention is required such as in the case A Local Authority and others v DL[2012] All ER (D) 2011 (Mar) This case involved an elderly couple living with their adult son. Following reports that he was being abusive, including allegations that he was trying to force them to put the house in his name, the local authority commenced proceedings with a view to protecting the couple. As neither had functional incapacity, the High Court first addressed itself to the question of whether it had inherent jurisdiction to hear the case, concluding that it did. The son appealed the decision and the Court of Appeal summed up the position as follows:

The Court’s inherent jurisdiction was targeted solely at those adults whose ability to make decisions for themselves had been compromised by matters other than those covered by the [Mental Capacity Act 2005]. The jurisdiction was, in part, aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy had been compromised by a reason other than mental capacity because they were; (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

With Section 76 of the Serious Crime Act 2015 regarding controlling or coercive behaviour in an intimate or family relationship (as follows)

(1) A person (A) commits an offence if —

(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected,
(c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaviour will have a serious effect on B.

We are yet to see the manner in which this will interplay with the Mental Capacity Act 2015, especially when public bodies are serving their statutory duties under the Care Act 2014 to protect adults with care and support needs form abuse and neglect.

About this case study collection

Purpose: The purpose of this document is to share MCA cases that have taken place within London for NHS staff to refer to when dealing with difficult MCA cases.

Audience: Commissioner and Provider staff involved with MCA decision making.

Background: The London NHS Commissioner MCA Board identified a number of tools/documents to support them to gain MCA assurance. One of the requests was to share MCA case studies. This document outlines a number of MCA cases which has been shared by CCG and provider MCA leads across London.

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