Last Thursday four disability groups demonstrated at Kensington Town Hall in support of Elaine MacDonald. Ms MacDonald has recently, following a Supreme Court judgment, been told that the local authority is entitled to withdraw her night time care and to require her to wear incontinence pads even though she is not incontinent.
The four groups have raised some important concerns about the review process that led to the withdrawal of Ms. MacDonald’s services. A leaflet for the demonstration says ‘the ruling has accepted that reviewing care plans can be treated as a reassessment of need. Therefore any contact with social services, even a phone call, could lead to detrimental changes to a disabled person’s care package’.
This is indeed an issue. One of the five Supreme Court judges, Lord Kerr, concluded that, even though although two reviews of Ms MacDonald’s care were not intended to be reassessments, they yielded sufficient information to enable the council to legitimately change the way that it met her needs.
Obviously if this was correct it would have a knock-on effect in that if the local authority was not intending to assess the person’s needs they would not tell the person that they were being assessed. The fears expressed by the four disability groups therefore seem well justified.
Age UK was also concerned about the review process in this case, as it falls short of being a decent assessment of need in one crucial respect. Ms MacDonald’s original assessment follows the guidance (Fair Access to Care Services as it was then) by setting out risks to independence and what services are needed to reduce these risks.
However the subsequent review just recorded that Ms MacDonald’s needs continued to be critical and substantial but did not analyse why. The local authority subsequently reached the conclusion that the ‘underlying need’ was to keep Ms. MacDonald safe – which resulted in other needs identified by the initial assessment – such as psychological wellbeing – being seen as of secondary importance.
If the review had done what the initial assessment had done and set out the reasons that care was being provided it is quite possible Ms. MacDonald would have been able to use this to challenge the idea that her need was simply to be kept safe.
There seems to be a clear lesson to be learned from the MacDonald case. Where someone has a review of their care plan it needs to be clearly recorded not only what support they will be getting, but also the reasons why that support has been given. This is the case even where there is no immediate decision to change or reduce services.
If those reasons are not recorded then it is almost impossible to challenge the local authority if it decides that the aims of providing care have changed and are just to keep the person safe or to keep them out of a care home. So if you, or someone that you are supporting or advocating for are faced with an assessment you need to push the local authority to put down in writing why it is providing support.
We will be pressing the government to make sure any legislation to implement the recommendations of the Law Commission review of Adult Social Care sets out the basic essentials of a review of a person’s care.