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  • 25th April 2017 | By David Jolley

    Brought up within a sheltered Methodist tradition I have been surprised in recent years to have my understanding of the Palm Sunday and Good Friday stories given nudges to think again.

    On Palm Sunday, the new picture given in a sermon was that the triumphal entry into Jerusalem with waving palms and shouts of hosanna for Jesus riding on a donkey, occurred on the same day that the occupying Romans were celebrating another festival by a triumphant march, riding on magnificent horses through the gate on the other side of the city.

    What I had known was the story of Jesus and the background of predictions through the Old Testament. This new story adds a twist that provocation of the Romans by aping their pomp would make it just that more likely that this day of apparent victory would be followed quite quickly by retribution, retribution in this instance meted by the Romans rather than senior Jewish leaders. A sort of belt and bracer scenario in the ancient version of inevitable martyrdom. This is not to diminish the significance of the events but to add another dimension.

    It makes me think. It makes me wonder.

    Good Friday remembers the crucifixion. I have known of crucifixion only as part of the Easter story. I have seen the cross in every church and as a symbol carried by Christians. I carry the image of ‘a green hill, far away’ and one tall cross bracketed by two set lower on the hill, dreadful but glorious, a unique story which changed the world.

    But latterly I have come to understand the crucifixion was a form of torture and capital punishment which the Romans, and some other conquering armies, used very commonly. Hundreds of people who were deemed to have insulted the occupying force, were strung up in this way along the streets and lanes. It was a humiliating, awful, protracted, public death.

    So the horror of this is that it is not something special, it is commonplace. This is what men and women who have power over others are prepared to do to those others.

    We see it now and every day. We know that people are abused and misused by loan sharks, by friends and family and by governments. We are reading of individuals being told they must leave this country, although they have lived all their lives here, because of insensitive interpretation of new rules and regulations in anticipation of this country leaving the European Union.

    How can this be!

    We know of people being denied benefits because they are incapable of dealing with forms and computers within changing frameworks and unreasonable time constraints. This is not right.

    I hear of dedicated, experienced and excellent clinicians being required to practice in a way they know to be unethical in that it is not informed by the patient’s best interest but by the interests and aspirations of an employing organisation. How can this be!

    We are busy working to counter the problems which illness and pathology bring to people.

    Far more dreadful is this commonplace of gratuitous cruelty.

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    10th April 2017 | By David Jolley

    I am fascinated by the editorial in the Guardian today 8.4.17.

    It begins with the information that the BBC is to close its religious and ethics studios in Manchester, but goes on to provide a series of quotes which are as breath-taking as they are revealing.

    ‘merely part of the long slow dismembering of the corporation’.

    This is by replacing the in-house facility with sponsorship of independent companies. This chimes entirely with the culture of the governing party which has seen parks, prisons, railways, buses, roads and much more removed from direct management from the public sector. Care of older people in nursing homes and in their own homes, is largely a province of private companies. For the well-off this often works well enough. For those dependent upon rationed care sponsored by local authority it is more often scarce and mean. But it all fits, and shifting broadcasting of religious and ethical matters into these hazardous waters can hardly be surprising.

    ‘Songs of Praise, the archetype of an unfashionable BBC programme’.

    ‘It is important that the BBC should continue to broadcast some shows that have no appeal to metropolitan people, or to anyone much under the age of 65.’

    Now I had thought that Songs of Praise was still popular. I have found it difficult to be sure of the viewing figures but they have fallen. The most watched programmes are the ‘soaps’ with figures over 6 million. Songs of Praise is more like 1 million. It may well be that most of those watching are old. Active Christians may be at church at this ‘God Slot’ time, though evening services are fewer than they were. It acts as something like an alternative to a church service. Initiatives to make it more viewable have given rise to critical observations likening it to ‘The One Show’, whatever that is!

    But the tone of this editorial is beginning to be clear, ‘nonmetropolitan’, ‘not under the age of 65’. These are clearly not groups any thinking person wishes to be associated with or labelled as.

    ‘The London centric BBC has little interest in questions of religion and ethics’.

    ‘Symbolised first by the religious departments move to Manchester’. This puts us firmly in our place. Manchester is equated with the land beyond civilisation and a suitable dumping ground for matters which are, by common agreement, of no value to a modern population.

    But wait. ‘It is very dangerous in today’s world to misunderstand religion as a preoccupation of people who are old, strange, or both …’

    Reading Francis Collins’ wonderful ‘The Language of God’ there is no doubting that religion and ethics have preoccupied the very finest intellects ever to walk this earth. The fact that they have become ‘unfashionable’ and best dismissed to the outer regions, and the quality of programmes trusted to the market, best value for money or simply the cheapest, is a commentary on the values of these times. How this has come to be is a mystery, for it is at odds with all common sense. The changes at the BBC are reflections of a drift, but the media provide education and they steer opinion and attitudes. They create and sustain heroes and gurus and they can destroy perfectly reasonable people and movements. I am not sure if they can encourage cohesion within local communities and the open and honest exchange of memories, stories, thoughts and fears which are necessary for exploration of religion and ethics. A serious and positive strategy would do a great deal of good. Maybe this can grow from the wasteland in which these great matters are to be sown.

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    4th April 2017 | By David Jolley

    We began with a simple idea in 2006, to provide a memory service within Primary Care. It worked and proved to be well received by patients and relatives, effective and absurdly cost inexpensive. This system improved the service and reduced expenditure by £500,000 each year. Extending the approach to people with frailty arising from multiple pathologies was also effective and reduced expenditure by another £500,000. The memory service continues, though I have not been involved as a clinician these last 18 months.

    Day by day I read newspaper headlines which declare that the NHS is overwhelmed and under resourced. Ian Greaves continues to share emails which describe positive and creative initiatives at Gnosall which are designed to make things work. This week I was able to visit the Practice to hear more about the work. It was good to spend time at Gnosall with Ian, looking very fit, and colleagues who are involved in these new developments and their vision for more.

    The ambition goes beyond our humble model which brought clinical skill to bear where it is most effective and which shortcuts red tape by a patient and family focus. That has to be the essence of any successful system, but these guys are looking wider. Their mission is to create a workforce which is equipped to meet the needs of current and future patients.

    This is a modest and sober ambition but not one which is achieved by present training and retention regimes. Pouring millions of pounds into new medical schools to generate more doctors has not worked. The doctors who are created do not want to practise in a way which matches the needs of the UK population. They are trained to value work with single pathologies and the latest hi-tech techniques. A large proportion of UK medical graduates are going abroad. https://www.theguardian.com/society/2015/aug/23/new-doctors-leave-nhs-for-better-life-abroad

    General Practice has particular manpower difficulties https://www.theguardian.com/society/2014/jun/14/gp-numbers-fall-recruitment-crisis-bites

    But so do less popular but urgently relevant specialties such as mental health and geriatric medicine. http://pb.rcpsych.org/content/37/6/210 http://www.clinmed.rcpjournal.org/content/14/2/102.full?related-urls=yes&legid=clinmedicine;14/2/102

    Colleagues at Gnosall have taken up this challenge and are addressing it on several fronts.

    With academic partners training doctors to care for patients who are frail. With other partners to support apprenticeships for carers, to train Physician Assistants and to equip experienced nurses for greater independence. 

    Practices which have not been able to recruit or retain doctors now can look to balancing their portfolio by making use of these alternatively skilled professionals.

    Patients are partners in these developments which are accepted, trusted and liked. People with long-term needs are trained to share responsibility for managing their conditions.

    I have become used to the trust, vision and confidence which pervades the Gnosall Practice but they tell me now that the unit of delivery is being increased from single practices such as this. I wonder if this is a strong a model as the small cell, three tiered system which we described from the memory service.

    The vision is one for a whole population health where everyone plays their part, language is kept simple and transparent and best use of all resources is guaranteed by recurrent scrutiny and revision. It looks for a fair allocated budget based on predicted need from demographic calculations. This budget is allocated to be used at the discretion of the locality rather than being hamstrung by imposed formulas from elsewhere.

    For patients in the greatest number and greatest need, including those with dementia and related disorders, Gnosall holds a torch to light a way through the darkness of despair. We have much to learn and we must get Ian and these colleagues to share more in detail of what to do and how to do it.

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    28th March 2017 | By David Jolley

    The Law Commission published its report ‘Mental Capacity and Deprivation of Liberty’ Law Comm No 372 March 13th 2017. 

    The full report, which includes a draft Bill runs to over 272 pages, the summary to 30 pages and the impact assessment to 45 pages. It is a massive and truly impressive piece of work.

    Brought in to respond to a European Court ruling, the Deprivation of Liberty Standards were added to the Mental Capacity Act and Mental Health Act in 2007 and implemented 2009. Their aim is to bring English Law to comply with the requirements of Article 5 of the European Human Rights Act. This relates to the right to liberty. The Bournewood case HL v UK had demonstrated that in some instances people were being deprived of liberty for mental health treatment under common law rather than the Mental Health Act, denying them procedural rights.

    When introduced it was anticipated that DoLS would apply to few patients in hospital and care homes each year. By 2012 to 2013 applications were 11,887 in the year, 2013 to 2014 there were 13,715 but a ruling by the Supreme Court, ‘Cheshire West’, in 2014 has led to an explosion of application to 137,540 2014 to 2015 and 195,840 2015 to 2016.

    Local Authorities have been overwhelmed. Each assessment is said to cost of the order of £1,000. Huge amounts of money have been diverted from services and the system has fallen badly behind the required time table to respond to applications. Matters were compounded when the Chief Coroner ruled that all deaths occurring to individuals registered under DoLS must be dealt with as deaths in State Detention and processed by Inquest of the Coroner. This introduced additional cost to authorities and very real distress to families.

    The Law Commission has been working since 2014 to identify a better way of complying with Article 5 ECHR, but also Article 8 which relates to the right to private and family life. The Commission has consulted widely and offered earlier drafts of their considerations and an interim statement. The anomaly of the Chief Coroner’s ruling was addressed in the House of Lords by Baroness Finlay November 2016. A form of words was agreed which will change the Policing and Crime Bill to mean that registration under DoLS is not deemed to equate with state detention. This will come into force from April this year.

    The present report suggests DoLS be replaced by Liberty Protection Standards (LPS] and that these be supported by a Code of Practice.

    LPS will be flexible across all settings including domestic residence as well as care home or hospital. Once applied to an individual they will not require a new application when the individual moves between settings.

    While DoLS have usually been considered and applied ‘after the event’ i.e. when someone is already in care and being deprived of liberty. The ambition is that LPS will be considered and agreed, or not agreed, before arrangements are put in place. ‘Arrangements’ is a key word and concept for LPS is envisaged as relating to a range of measures designed to help and protect an individual and those caring for them. This is not just a matter of placement.

    Most assessments can be made by internal review by services already involved with the care of individuals, though the assessment will be independent of teams directly involved with their care. Only in sensitive cases will there be resort to an external opinion, the new profession, ‘Approved Mental Capacity Professional’. AMCPs will be involved when an individual does not agree with an arrangement or when there is hazard to others.

    Applications will be made to hospital managers or to Local Authorities. The latter applies to arrangements made by private medical organisations and self-funding families.

    A table of conditions, positive and negative, defines who should be considered for LPS. Safeguards include regular reviews and the appointment of an approved person or advocate to support every individual being considered.

    There is a flow chart which clarifies the process but I remain unclear what happens when an individual who has been considered is deemed not to fulfil criteria at that point in time. I presume repeated applications can be made if concerns recur or persist.

    Decision makers are required to take into account ‘a person’s ascertained wishes and feelings’ when best interest decisions are made.

    Authorisation can be active immediately or from up to 28 days from the assessment.

    Young people aged 16 and 17 will be included, rather than relying on parental consent.

    The issue of fluctuating capacity is addressed. Essentially if individuals send a lot of time lacking capacity, the safer option is to agree a LPS.

    A basic inclusion criterion is that an individual ‘is of unsound mind’. This is a ECHR term, not directly equivalent to most modern definitions but avoiding conflict over definitions of ‘mental disorder’ and ruling that some individuals may lack capacity without being deemed mentally ill.

    It is required that arrangements are justified as ‘necessary, proportionate and in the best interest’ of the individual. Consultations should include the individual, carers, donee, appropriate person and advocate. For individual age 16 or 17, parents or the responsible Local Authority will be consulted too.

    Arrangements can be contested if in conflict with the views of a done, a Court Deputy or a valid Advance Decision. This will lead to an Independent Review or referral to an AMCP.

    The Responsible Body will collect and maintain an Authorisation Record. LPS itself does not give authority to deprive an individual of freedom. A new Section 4AA of the Mental Capacity Act will protect staff against civil or criminal liability.

    Once authorised a LPS will last for 12months and can be renewed without formal reauthorisation every 12 months to 3 years. It is interrupted if an individual becomes subject the Mental Health Act and can be revoked ahead of its renewal date if capacity returns.

    As I read it, there will be an Approved Person identified for every individual where this is possible. In absence of such an advocate will be appointed. Even where there is an Approved Person, individuals or the Approved Person has the right to request an advocate.

    Appeals will be dealt with by a Tribunal which is yet to be created and is left to the discretion of Government. Many changes are happening and anticipated for courts and tribunals so that suggesting details at present would not be useful.

    Monitoring of the new system will be essential and will probably fall to CQC and its Welsh equivalent. This too is left open for Government to decide.

    The need for a sober and effective interface between LPS and the Mental Health Act is identified but the details of how this will work remain for further consideration.

    Placing the individual at the heart of decision making and supported decision-making schemes will characterise LPS. Advance Consent will be available so that people can say, whilst still possessing capacity, what arrangements they will be content with should certain situations develop. Let us hope that this will be widely advertised and widely taken up. It allows individuals to feel ownership of their futures and will obviate the complexities and expense of LPS.

    While it is an act of faith that LPS will function via well thought out and discussed decisions ahead of any implementation of arrangements, there is the option for interim or emergency deprivation of liberty for ‘life sustaining treatment or care to prevent deterioration.’

    There is a reminder that unlawful derivation of liberty can lead to civil or criminal actions in law.

    Costs and benefits
    The cost of all this is estimated at between £19,269,000,000 and £28,234,000,000 each year. 

    Financial benefits are estimated to be between £69,445,000,000 and £127,906,000,000. These calculated benefits rely on savings from possible law suits, and QALY gains in health. There must be considerable doubt of their validity. 

    This suggests that the massive expenditure is a bargain because it is far outweighed by the benefits. The expenditure is real and takes away money that might be spent on care or treatment. The benefits seem to me to be theoretical, intangible, and unreal.

    Using similar assumptions full implementations of DoLS is calculated to cost £170,002,000,000 to £261,772,000,000 i.e. ten times as much as LPS. Benefits are calculated at £15,115,000,000 to £26,414,000,000 each year i.e. less than a quarter of the gains from LPS.

    Review
    I cannot avoid ‘Wow!’ This is a magnificent piece of work, beautifully crafted, a tour to force. The estimated costs are enormous and may well turn out to be underestimates, but they are less than those associated with the discredited and clearly unaffordable DoLS.

    The estimates of financial benefit are, I suggest, close to science fiction. The nonmonetary benefits of rights and compliance with European law may be real and desirable.

    I continue to ask whether any other European country has adopted or is intending to adopt systems anything like as comprehensive, extensive and expensive as this.

    All this has followed from the Bournewood case, which I would argue rested on inadequate understanding and ill-informed interpretation of the law of that time by the practitioners who were involved. If that were seen to be true, and said clearly at the time, that would have been the end of it.

    The recent escalation of costs and the drawing in of vast numbers to the prospect of our last months being subject to additional legislation follows the major ruling of Cheshire West. The Law Commission was required to accept this as the position in law in this country. I have suggested previously that, though it may have some logic in law, this ruling makes no sense within the realm of common sense. It places us in the unethical position of committing massive resource to a paper exercise which has little tangible benefit and will mean that services to people in need will be even more severely rationed.

    The option of using an Advance Decision to declare acceptance of appropriate care and treatment may prove to be a saving ‘get out’ clause. This places responsibility on every individual to take action in the interests of the national good to reduce the waste of scarce resources. The harm of the Chief Coroner’s legally correct advice has been neutralised by a few well-chosen words. I still hope that a way can be found to do the same for Cheshire West. 

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