In the Bleak Mid-Winter


Everyone knew Mary. She had been known since her husband Albert had been admitted to hospital with his heart 6 years earlier. Mary had sat by his bed, refusing to leave, sleeping on the chair. The ward staff had tried to get her to go to the café to get something to eat, but she didn’t want to leave his side, so they’d rung the hospital social work team. The hospital team went through their pack ups and managed to get together some cheese sandwiches which Bob and Lyn from the team took up to Mary on the ward.

Mary was dosing when they found her in the chair next to Albert. Dressed in an old coat, stockings and well worn boots, she was not happy to be woken up. ‘No, I don’t need owt, thanks’ she grunted at the social worker. ‘Me and Albert we are just fine, once he gets better we are going home’. Lyn sorted a mug of tea and left it with her, ‘just in case’. They paused as they were about to leave the ward and waited, watching as Mary’s hand reached out and a sandwich was picked up, sniffed, and then a bite taken from it. A decision was made, they would be back in a couple of hours with more sandwiches.

The phone call came through 2 days later, Albert was not getting better, he had become really quite unwell, he needed moving to intensive care and Mary was kicking off refusing to leave his side. Lyn and Bob went up to the ward.

Mary was inconsolable. She’d not been separated from Albert in over 60 years. She was not having some doctor or nurse tell her that she couldn’t be by his side now. Bob spoke to Matron who told him that they were working on Albert now, it didn’t look good. A nurse appeared, Mary needed to come now. Lyn and Bob went with Mary as she went into a room with bright lights, tubes, machines, and on the bed – Albert. ‘We need your permission to stop’, Mary collapsed into Bob.

The next 24 hours had been a blur, but they’d got her home in Bob’s car. It was a stone cottage right on the edge of the villages in the Pennines. Gritty beauty in any other circumstances Bob thought. Isolated. The cottage was cold, really cold. No central heating. No electricity or white goods. An old cold store for food storage and a wood fired stove the only source of warmth. Lyn offered to make a fire and get a cuppa on. But Mary wouldn’t have any of it, she just wanted them gone. Mary settled into her new life without Albert.

The referral came through from District Nursing to the Locality Social Work Team. Mary’s GP had been out to see her and was extremely worried. She was living in slum like circumstances, hording, piles of stuff everywhere in her house, no central heating, no electricity – she wasn’t safe. District Nurses had been to see her but she was refusing their help. A social worker needed to go out, she needed to be in residential care for her own safety, winter was coming.

Simon and Kirsty from the area social work team went out to see Mary on a cold December morning. The frost was deep and crisp as a cold snap had set it. Everything was sparkling white. The path was pretty icy to Mary’s cottage, Kirsty nearly lost her footing as she slipped on the way, so Simon got to the door first and knocked. No response. They tried again. Still nothing. Kirsty tried to look through the windows. She could see Mary in there, moving around the piles of papers and clothing that had accumulated over the years. They waited and finally Mary made her way to the door but refused to open it. They could hear her there on the other side of the door. ‘Are you alright love?’ asked Simon through the letter box. No reply. ‘People are worried, we just wanted to check on you’. Finally, a response ‘Bugger off’. Kirsty smiled, Mary sounded fine, nothing wrong with her voice. However, having got one response, Mary wouldn’t reply to anything else they asked her. After an hour of trying they paused. Mary was sill there on the other side of the door, but she wouldn’t speak to them. Kirsty stuck her hands in her pocked to warm them up, bonus! She found a couple of quality street she’d grabbed on the way out from the office Christmas tin. She passed one to Simon. As they opened them, the wrappers crinkle sounded louder than usual in the cold, crisp morning. ‘What’s that?’. Mary had heard the wrappers. ‘Quality Street, do you want one?’. Nothing for 10 minutes. Then ‘yes’. Kirsty looked at Simon, OK then, ‘can you open the door’, nothing again, silence. Simon looked at the letter box, they came to an agreement, they reached through the letter box with a sweet. A partially gloved hand snatched the sweet away on the other side of the letter box. Progress. The start of something. In the car on the way back to the office they talked through what to do next.

Kirsty and Simon did the leg work over the next few days. It turned out that Mary had a regular routine that everyone knew as she walked from her house to the farm shop, post office, church and past the local pub every Thursday for her weekly shopping trip. Everyone knew her. They were all really sad about what had happened to her and Albert. They were all unconsciously quietly checking on her, making sure she was OK. The village were up for being there for her, letting Kirsty and Simon know if anything changed. The butcher in the farm shop knew that she liked a sausage sandwich. A plan was reached, Mary wouldn’t speak to the social workers. But she would take food through the letter box. During winter they would stay in contact with Mary and visit once a week to check on her, taking with them a parcel of sausage sandwiches and quality street to post through the letter box.

The first trip went well. Once again it took an hour for Mary to come to the door. Once again, she told them to ‘bugger off’. But she grabbed at the sandwich and ate it on the other side of the door whilst they waited. Over the next three months some days she even began to speak to them a little – ‘oh it’s you again’, ‘you off now?’.

It was March and the first of the daffodils were out on the pathway to Mary’s door. Yellow heads bobbing in the early spring sun. Kirsty and Simon had heard from the village that Mary was following her usual routine but just wanted to check she was OK. Mary was waiting at the door as they arrived, the door opened a crack, they looked at each other and stepped in.

Stay Another Day

winter walk

So, it is a given that we love the Mental Capacity Act. We love the fact that when it is administered properly, it ensures people who lack capacity to make specific decisions benefit from safeguards, which simultaneously enable the person to exercise their rights, such as challenging the assessment/Best Interest decision. As well as ensuring these safeguards, the MCA also enables the state to sign off and sanction proportionate support and protection to mitigate against a particular situation. We also love the fact that when someone has the capacity to make a specific decision (such as whether I have the capacity to choose to write this blog) the MCA doesn’t really apply. If the decision doesn’t break the law or infringe on anyone else’s rights, personal decision making is essentially no-one else’s business. When a decision to act in a certain way does break the law or infringe on others we rely on criminal justice to ensure rights. So whether this blog is good (unlikely) or bad (more likely) it doesn’t matter in terms of whether or not we can make the decision to write it. We have capacity to make the decision and as such we can get on and write pretty much what we choose to.

We were asked a question last week that comes up quite often, particularly around this time of year when its getting close to Christmas, the days are darker and the weather is turning bitterly cold. The question is, whether in assessing that someone has the capacity to make a specific decision to accept or decline care and support, do social workers use the non-rebuttal of principle one (i.e. assume capacity) or use capacity assessments that people are able to make the decision, to justify a lack of action on behalf of the social worker and simply walk away, close the case & move on just because the capacitous person is telling us that they do not want us involved?

We touch on this issue in Social Work, Cats & Rocket Science in most of the case examples in the book. All those of us who were involved with Elsie in ‘Someone To Safeguard’ are mindful of the fact that ignoring rights, or striving to find a lack of capacity through over assessing and/or setting the bar artificially too high or over-medicalising what are seemingly environmental situations in the pursuit of safety, often at the price of happiness such as in Elsie’s case, is simply wrong & needs to be vehemently guarded against by excellent social work practitioners. However that is not to say that a balance doesn’t sometimes need to be struck between turning on our heels, doing an about face and walking out of someone’s life because they have capacity to make a decision that they don’t want help and genuinely working to keep a possible foot in the door for when state support may be required either through the person changing their mind, accepting the consequences of their original decision may have been detrimental or where, in the case of someone going on to lose capacity to make the decision, a best interest decision to put in place treatment and support is necessary. Our answer to the question as to whether we do just walk away if a capacious person who has care and support needs but who is in an extremely risky situation tell us to do so is unequivocally yes and we absolutely and unashamedly work uphold the persons right to reject undue state interference. However that in itself is so very often not the end of our work – its often just the start what Ruth Allen at the British Association of Social Work refers to as ‘the messy stuff’ and this is where the best social work excels rather than disappears.

When the door is slammed in our faces, everything we learnt at university, through our experience, through learning from theory, through working alongside exceptional colleagues (both in social work and in partnership with allied professions) is used to maintain & enhance relationships wherever possible, whilst absolutely keeping the right side of Article 8 ECHR & in upholding our values, becomes critical. For us, in rejecting the notion that adult social workers are merely brokers of care packages, stepping up to the plate and demonstrating our unique skills in trying to ensure a lifeline for people becomes vital, essential even. This is where adult social work is at its most vociferous challenge and where the assumption that social work is inherently helpful, is at its most tested. Can we forge a relationship with a capacious person in a risky situation, who is telling us in no uncertain terms where to go, whilst at the same time not only uphold their right to reject state intervention but be the leading exponent of their demand to reject support within our multi disciplinary settings and where we are under significant pressure from genuinely worried family members and other professionals? The answer is that we can and we do. Only last week, in looking at preparations for Christmas, it was staggering how many people we support who do not accept statutory help in the form of prescribed care or Direct Payments, but where social workers are working to keep channels of engagement open, often in the most difficult of situations.

Every social worker seemingly has a story about a person who made a decision to reject us and what the outcome was. In Elsie’s case we panicked and sought immediate medical intervention before ultimately probably erroneously using mental health legislation and watched her go from the home she had lived happily in for 80 years into hospital & care home & die within months of first slamming the door in our face. With David, a man dying of cancer and battling with alcoholism, we saw him reject all state intervention whilst tipping whisky into his drip feed and choosing the death he clearly advocated. We did what we could for David and we were commended in court afterwards for upholding his rights. However we could not do anything to stop him and his capacatous decision making, all we could do is respectfully uphold his dignity in choosing how his life ended. But Elsie and David are both extremes.  Most people social workers are supporting range between the extremes, and where we are hanging on by our social work fingertips whilst capacious people make a series of decisions that worry, upset, confuse and sometimes scare the lives out of people. Hanging on in there, sometimes to ensure that other agencies adhere to the persons Article 8 rights, is often the only social work intervention possible. Social Workers who understand the inherent power in their role and recognise that legislation is at their fingertips but should not be applied to a situation where a person is free from mental ill health and has the capacity to make the most challenging and worrying decisions, or simply where there is no causal link between the persons impairment and the decision to be made, battle to uphold rights using only their skills as communicators to remain involved in the face of rejection and adversity are the social workers who take our profession to another level. These are the social workers who recognise that the Mental Capacity Act has no get-out clauses for people with particular conditions and the generality of the Act in that it applies to us all in the exact same way. These are the social workers who do not bend the rules and the assessments so that it may act as a bypass for these most painful and seemingly hopeless situations and in doing so they protect all our human rights. Yet crucially these social workers keep the door ajar for the capacious person and their families and remain involved with the state but accept a different kind of involvement. This is social work resilience and keeping the hope alive at its best and it requires the very best of us all. It means we genuinely keep the channels of communication going, make the call to concerned relatives and not to leave it to them to worry about their loved one on their own but we instead share the concern, properly hold the risk whilst also enabling it as it is lawful & understand & uphold the decision someone is making, whilst remaining resilient & positive that things may be better and help may be accepted. These are the social workers who have the connectivity to families and communities and networks of support, if not to the person themselves. Its social work but its often three, four, five times removed from the person.

So this is to all the social workers out there who are somehow managing to do this work, particularly over Christmas and in the winter. We know this stuff is not rocket science but upholding rights whilst holding risk is really bloody hard. The pressure to misapply legislation, agree that ‘something must be done’, buckle and dodge the complaint that is going to be made about you for doing your job correctly and go on to find a lack of capacity to relieve everyone of the burden of autonomous decisions that scare us rigid is real.

So for all the social workers who are worried about people over the winter and who are out about doing things like posting cooked food through letterboxes of the unkempt house in the terrace block, with the hole in the roof and where we know there’s no electric or water in there but there is a person, who at this moment in time isn’t prepared to speak to you but might, just might accept the food parcel – thank you for hanging on in there. For all the social workers out there using resources to buy things like mobile phones for people and hoping someone will accept it as a lifeline to ask for support whilst accepting that they might not and that this may lead to more risk – thank you, you are doing exactly what you are educated to do and paid to do. For all the social workers who are hanging on, staying involved, living with the complaints and accusations of doing nothing whilst actually doing the exact opposite, or those picking up the phone or visiting the concerned family members to see how things are progressing and look at where, if anywhere, we can collectively make a difference to the person that they love – thank you, that’s often all anyone can do and your involvement despite the obvious frustrations of those who love the person, is what you need to do. And for all the social workers who use every skill they have to keep the light on and keep whatever contact in place they can and can pull off the seemingly impossible of being the best exponent of human rights on one hand in enabling the persons decision to be heard, whilst not disappearing, not using capacitous decisions as an excuse to disappear but as the start of something really very skilled – thank you.

Many thanks for reading our blogs throughout the year and for those who bought the book. We are privileged to work with some amazing people, including social workers, both in our Local Authority and nationally, other professionals, providers of support, academics, students and especially the inspirational community of people who follow the blog. Many thanks also to our wonderful guest bloggers.

On behalf of Last Quango in Halifax may we wish everyone a peaceful, joyful Christmas and a wonderful 2020.

Walk out to winter, swear I’ll be there
Chance is buried just below the blinding snow


Special not Special

I'm Special

A guest blog by student social worker @RShirtliffe

Social Workers = Special type of person, aren’t they?

I am currently embarking on my second year at University to one day become a qualified Social Worker. To myself, becoming a Social Worker would be a ‘dream transfer’, as the footballers would say, into a career I have long been striving for. However, should I drop this information onto others around me I seem to get a similar response:

“A Social Worker? You’re brave” – (puffs out cheeks and raises eyebrows)

“Really?” – (confused face)

“Rather you than me” – (relieved someone else wants to do it, as if they could be called upon to become a social worker themselves like jury service)

Then there is the most common but uncomfortable response of all….“Couldn’t do it me, taking people’s kids off them. Not for me that” – (accompanied with a scrunched up facial expression and upper lip movement that says social work is disapproved of nationwide).

Is social work really removing children from families? Surely that’s not right.  What is the role of a social worker? Will I be hated before I’ve even become a social worker? These are just a few of the many questions that I thought about, but I could not answer until I finally made the decision to enroll at University. Meeting different social workers with various amounts of experience and knowledge has really helped to clear my mind. But has it erased the nagging thought that I will still be disliked by many before they get to know me? No. If anything, it has made me worry that it will be a common re-occurrence.

The most powerful response I have had the privilege of trying to compute is “takes a special type of person to want to do that”.

Does it? Why do people have to be ‘special’ to want to help people find purpose. Or to offer to help somebody battle a situation that they maybe don’t fully understand. Or to simply have someone check on them every now and again. What is so special about ringing or visiting someone to check that they are happy with their life, or not in some cases. I don’t have to be a social worker to do those things, nobody does. It’s worrying to think that the public see someone as special for wanting to make a difference to others lives.

Before starting university, I was very naïve to the sheer size and scope of areas that social workers are expected to work to and within. To me a social worker did it all, children, adults, older people, families. Now I’m a little more up to date with the different types of social work and social work employers, I can see why so many people don’t fully understand what a social worker does or can do. I will hold my hand up and admit that I myself once had a very simplistic opinion as to why I wanted to be a social worker. Simply because I wanted to help people. That was it. How ideal that would be if that was my job role. There would be much less disapproval.

Social work is planning, meetings, specific work taking place every day to protect and safeguard, years of training and practice. These unspoken aspects are the heartbeat of the social work role and I for one cannot wait to be managing my caseloads using all the tools out there available.

So as my first placement of my social work training draws closer and closer and I feel the build up of nerves and excitement, I keep questioning how I will be seen by the people I will be working with.

“Student social worker, you know nothing!”

“You’re just another one of them”

Or maybe, and it seems a little far fetched, but I might be liked…..

After all, I am special right?

Age Speaks

On 19th September, we launched the book version of our blogs, Social Work, Cats and Rocket Science. The launch was at the brilliant Bread and Roses pub in Clapham,a cooperative venue steeped in history.The wonderful Mervyn Eastman from Age Speaks was there to capture the atmosphere for his podcast which we hope you can find time to listen to over a cuppa – book sold out in a week which has blown us away as the author royalties are going to Stay Up Late. A new batch comes out this week so hopefully we can raise a bit more and support #nobedtimes being the norm everywhere.

Do Anything You Wanna Do


A guest blog by @briantheroomie

I have just found out the lead singer of Eddie and the Hot Rods has died. Heartbroken doesn’t even come close. There are gentle reminders everywhere that we are all living and breathing in world that can be cold and harsh. The poet Samuel Decker Thompson offers that “we are all just a car crash, a diagnosis, an unexpected phone call, a new found love or a broken heart away from becoming a completely different person” Today of all days I don’t want to be a different person. I certainly do not want any more news that leaves me hurt and wanting to cry. I am caught in the headlights, wide eyed and lost to pain, grief and the far reaching impact of a profound sadness.

The song ‘do anything you wanna do’ has been with me all my life, or it feels that way. As a teenager the words reverberated and were like a clarion call. Come with us and ‘be you’ seemed to be the central message. Don’t let ‘them’ tell you anything and make your own mind up. Barrie Masters (Eddie) sang in full roar and his words hit me like a sledgehammer. Eddie had all the charm, charisma and cheek of ‘the artful dodger’ as played by Jack Wild in the 1968 film version of Oliver Twist. On first seeing Eddie and the Hot Rods on ‘Top of the Pops’ I loved them and him with all of my heart.

Eddie had that ‘cheeky chappy’ persona about him. He epitomized independence and had a real working class swagger about him. Long before the Gallagher’s, Eddie rode in with fistful of arrogance and a stage presence to hang it all on. More than that though, he had that tune. It felt like it was written for me, just for me. It suggested rebellion was close to hand and I could be one of the main instigators. The central theme to the song was concerned with ‘self’.

Years later when introduced to the writing and thoughts of Carl Rodgers it seemed to me Eddie had been heavily influenced by psychological theory. That ‘do anything you wanna do’ embraced the notion of self-actualization was not in question to me. From that moment social work and rock and roll were inextricably linked and intertwined. I had fallen in love with music and here I was about to give my heart away all over again.

The Greek philosopher Plato observed that music is a kind of moral law and that “it gives soul to the universe’ and this in turn can allow us to fly from this earthly realm and imagine an existence where anything is possible. Baudelaire (1857) takes this one step further in stating “music fathoms the sky”. One might think all of this to be rather fanciful and too idealistic. However even Pythagoras maintained that there was a certain geometry to the noise strings make and that “there is music in the spacing of the spheres. 

Greicius (2017) argues the universe is alive with sound and that at its heart is a rhythm, as every night, our sky beats with the pulses of radio light waves, most of which go unseen. This would suggest we are surrounded by percussive back beats and these are an everyday part of the natural world. One could therefore assume there is a very real connection in terms of the effect this has on the human condition. Levitt (2019) asserts the spiral in a snail shell is mathematically equal to the spiral in the milky way. He further argues this ratio is the same in human DNA. Furthermore it is manifest in music that ‘transcends cultures all over the world.

It is difficult to find ‘rational logic’ in this statement but a huge part of me wants to believe  so to quote the famous 1960’s popular beat combo The Monkees “I’m a believer” 

When considering my own practice I would argue there is an inherent bias toward the arts within social work as much of what we see and observe is the basis for what we do next. Music seems to offer a unique way to both engage and give us insight of the lives of some people. Hannu (2107) argues that within some “social work practitioners experience, there is a wealth of evidence to support the idea that music can reach people in quite a profound way. This would sometimes negate the need for words. This might then be a manifestation of people telling their own stories without the need to provide elaborate personal detail in relation to what they might feel to be a very personal and painful narrative. In one sense the music itself becomes the voice, as for many of us the relationship with the sound or words is in itself an expression of our own inner being. 

Music as a tool can be widely used in the fields of both social work and health and social care. Sacks (2007) explore these themes further and asserts that music “can tap into “long-buried memories” and also help people move from their existing situation into a feeling of the familiar, thus making it an especially  “valuable tool in the treatment of aphasia, Parkinson’s disease, and dementia”

There is something in offering ‘art therapies’ alongside some of the more ‘talk’ based approaches to intervention. Art can offer the opportunity for a more expansive discussion as it allows for a broader understanding of the person within their own personal narrative. When one considers choice of music and the link with how people interact with the world and in what way they then position themselves when considering certain songs, the discussion could be freer flowing and provide an invaluable insight into another person’s life. 

From a right based perspective this approach sits well within an anti-oppressive discourse and intervention, in that it is important to recognize that  social workers see people that are being supported as having their own unique history. It also starts from a point of establishing a positive understanding of strengths, choice and independence. The dialogue regarding arts and music could equally give the worker an understanding into how people self-define when considering culture.

If one needed evidence of music as complimentary mechanism for relaying one’s personal narrative then Radio Four, Desert Island Disc’s is exemplary. Guests are invited on to the show and guided through an interview where ” they explain their choices and discuss key moments in their lives, people and events that have influenced and inspired them and brought them to where they are today” BBC (2019) This all starts to sound very familiar from a professional social work perspective. Life stories and personal testimonies are central in establishing identity as well as exploring processes for ‘positive change’. 

Christine Stevens (2009) examines the notion of ‘healing through music’ and claims that we are biologically wired to rhythm and we can’t hold still when a good beat is playing. Judging by some of my own recent public performances I would agree as I have a lifetime subscription to ‘Dad dancing magazine’ or would have if it existed. More importantly studies evidence that drumming and percussion can aid the immune system and there is a school of thought that would offer it can counter burn out. Stevens also argues that this approach to art based therapies can alleviate mood disturbances and give temporary respite from chronic pain.

When one considers the potency and impact of art it would seem sensible to view it as a tool to expand our limited understanding people’s lives. People’s loves, wants needs and desires can be writ large through the voice or music of another. Equally their fears and negative life experiences can be represented through this medium with little recourse for the person themselves to actually say anything.

When I starting typing this it was to remember Eddie and his Hot Rods I wasn’t really expecting to discuss art based therapies, right based practice and social work. However if music or art has relevance to the person we are supporting then why would we ignore what could us invaluable insight in to another human being. If Eddie is offering liberation through self-actualization and we can use this approach to support practice development then who am I to disagree, To quote the man himself “do anything you wanna do”

Can you dig it?

wine bottle

I often see guidance for those completing mental capacity assessments which suggest that, while the person may appear to be lucid and capacitous at first blush, if the assessor “drills down” or “digs deeper” they will be able to show that actually the person lacks capacity to make the decision. Yet as the guidance from 39 Essex Chambers tells us, “the presumption that P has capacity is fundamental to the Act. It is important to remember that P has to ‘prove’ nothing.

It reminds me of the criticism of the way some professionals use the MCA; that people with a mental impairment often have to demonstrate a degree of understanding in decision making that people without a mental impairment don’t.

Consider this scenario. I know it’s daft, but please put yourself in the shoes of say a person with a learning disability wanting to go to the pub on their own;

You are a social worker, it’s a Monday evening and you have had one hell of a day. It started with back-to-back meetings, the first one at 0830 (who arranges a meeting at 8.30 on a Monday?). In the afternoon a crisis developed regarding someone and by the time you get back in your car for the drive home, it’s gone 7 o’clock. It has been a stressful day.

On the drive back home, you stop at the off licence for a bottle of wine. You know you shouldn’t, it’s a school night, you have to be back on the road the following morning but nothing winds you down like a bottle of wine.

You tell all this to the guy behind the counter, maybe feeling a bit guilty for having a drink on a Monday night. The shopkeeper says to you,

“Are you sure you should be drinking tonight?”

“Excuse me?” you say.

“Are you sure you should be drinking tonight? You just told me you have to be back on the road in the morning; did you know that 23% of all drink-driving convictions are where the person was still over the limit the day after?”

“Oh, don’t worry, I’ll be fine. But thank you for your concern.”

“Well, I’m not sure I should be selling you alcohol. The effects of alcohol wear off differently depending of the age, gender, weight of the person. It can take over twelve hours for the alcohol units in that bottle of wine to wear off.”

“Well, I’m not sure it’s any of your business. I’ll be fine, I’ll just take the wine and pass on the advice, but thanks all the same. Anyway, I have one of those breathalysers at home, I can check in the morning if I am over the limit”

“What make and model is it”?


“You just said you have a breathalyser. What make and model is it? I need to be sure you are going to be safe. And it’s not just you I am worried about, supposing you hit a pedestrian? I have a duty of care…”

Ok, that conversation would never happen and if it did, you would tell the shopkeeper where to stick his bottle of wine and go elsewhere.

But it does happen all the time for people with disabilities. Last night I was at a gig in Bradford to raise money for musicians with learning disabilities to fund a music tour of Norway.  Brian Mitchell (social work lecturer at Bradford University and lead singer of The White Ribbons) pointed out that we all go out on a Friday night and take it for granted – no risk assessments, no best interests decisions, no risk management plans. But people with learning disabilities and autism, or people with a brain injury, mental health needs, dementia etc all have many hoops to jump through before they can do what we all do without question.

So by ‘drilling down’ or ‘digging deeper’, an assessor will eventually be able to prove any person could not make a decision, and then with a few typed words, easily link that inability to the mental impairment. And sadly, it is unlikely that assessment will ever be challenged. (By the way, it remains the case that since 2007, while I have been challenged many times about the outcome of my capacity assessments, not once has that been when I concluded the person lacked capacity; everyone agrees when I say that, I am only challenged when I say the person is able to make the decision).

Many readers will be wondering about the first Principle of the 2005 Act, that we have to assume the person has capacity unless proven otherwise? I wonder the same. I also wonder what efforts those professionals challenging me about my assessments made themselves without success? I ask to see their assessment in which they will have demonstrated they did all they could to help the person make the decision without success. Nine times out of ten, there is no assessment, and when there is, it is usually so poor it’s not worth the paper it is written on. For example, I saw one recently by a consultant on an acute ward, it said “Mrs Miggins has dementia and therefore lacks capacity to make wise decisions.”

But back to drilling down, digging deeper and raising the bar; the law and policy guidance does not tell us to do this. It is possible that a practitioner can so want a person to be autonomous and make the decision that they don’t ensure the person is truly making a capacitous decision. But that’s rare compared with people simply wanting the person to be incapacitous so they can then go on to make a decision for them and invariably it is a decision contrary to what the person wants, which is often what initiated the capacity assessment in the first place.

However, I met a man once who appeared lucid and able to make the decision but during the assessment it became evident that he did not understand his limitations, he thought he could walk and climb the stairs at home and that if he fell over, he would be able to pick himself up again. No matter how much I showed him the evidence he could not do that, including inviting him to demonstrate his mobility to me, he wouldn’t have it. But that was not determined by digging deeper, it was simply that I applied the MCA and found that he could not understand the relevant information and that on a balance of probabilities, it was because of his dementia.

Of course, it could have been that the man was afraid of admitting to me his limitations, fearing I would make a decision for him. It is a massive judgement call we have to make. As Lucy Series tells us, “Capacity assessment is not some kind of scientific process where capacity is ‘measured’, it’s a social interaction – often with hugely high stakes for the person being assessed. If I were having a conversation with a person and something I desperately wanted hinged on it, I think I would probably try to convince them that it was a good idea and minimise the risks. That’s how some people argue. That’s a pretty standard persuasive tactic when arguing a point. It may not mean that a person doesn’t understand the risks – it might mean they don’t want to hand a person they regard as powerful any more ammunition to deny that it’s a good idea.

So it was a judgment call, and I hope I got it right when I concluded the man did not have the mental capacity to decide to go home. But we must reflect continually on our practice, on our values and on our competence and prejudices.

I undertook a capacity assessment recently where the woman had a speech impediment. She struggled to get her words out, she sometimes lost track of what she was trying to say, such was her anxiety. In my mind, I was thinking she was incapacitous, but when I looked down at my notes, her responses were all logical and reasoned.  I had to allow for her being nervous and anxious. She asked me what the consequences of the assessment were, she said, “What happens if I fail?” and I wondered; Who gave me this power and why does she think I have power over her? The answer of course was no-one, I don’t have a power at all; a capacity assessment provides a defence, not an authority.

So no digging deep, no drilling down, no raising the bar higher and higher or judging people because they cannot remember your name from a previous visit. We just need to follow the process as described in the MCA, in the Code of Practice and in the subsequent caselaw. If the person is capacitous, and I have followed the process, what the person goes on to do is no more my business than it is the business of a shopkeeper whether or not you have a bottle of wine on a Monday evening.

39 Essex Chambers, “A Brief Guide to Carrying Out Mental Capacity Assessments”, March 2019

Lucy Series, The Small Places, “A serendipitous judgment”, September 2012