Kafka in Scotland

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Kenneth Roy

The disturbing case of Robert Lapsley raises questions about the power of bureaucracy over human beings.

Kenneth Roy

on the disturbing case of Robert Lapsley

If the essence of ‘The Trial’ is the idea of the helpless citizen overwhelmed by bureaucracy, then Kafka is alive in modern Scotland. A local authority wishes to have formal powers over the life of a man called Robert Lapsley while his family, both loving and caring, find themselves disorientated by the speed of the process, the lack of information surrounding it, and the emotional and financial cost of fighting it.
     ‘The amazing thing is that I was not given, and have still not been given, any explanation…I was simply told that the order had come from on high’. This is a quote from the central passage in ‘The Trial’. But it could easily have come from a member of Mr Lapsley’s family, so close is it to describing the nightmarish predicament of his mother, sister and brother-in-law.
     Robert Lapsley is 45 years old and has been epileptic since childhood. Until fairly recently he lived a normal life. He worked, he got married, he had a son. He was independent, self-sufficient, a useful member of the community. Two years ago his medication was changed and those closest to him began to observe adverse changes in his personality and general demeanour. The family claims that it reported these changes to Robert’s doctors and was given an assurance that the new drug was best for the patient in the long run.
     It is not for me to question this clinical judgment; nor do I necessarily believe the horror stories on the internet about the side effects of the drug in question. But it is the family’s clear perception that the deterioration in Robert’s condition dated from the change in his medication.
     On 30 March, Robert Lapsley was admitted to Stirling Royal Infirmary. The following day he was transferred to Falkirk Infirmary, where he remains more than three months later. Because he was hallucinating he was placed in a private room. There he has suffered a broken arm and a broken leg in falls. He is incontinent. He is barely coherent.
     His family visits him daily: his mother in the afternoon; his sister in the evening. Despite his wretched state there appears to have been a lack of communication between the family and the physicians attending him. Naturally this has added to the distress. Falkirk Infirmary closes in four weeks. What is to happen to Robert then?

The family derived some comfort from a consultant who examined him. This consultant recommended that he should be sent to a named nursing home for ‘one-to-one therapy and rehabilitation’. It was at this point that, from the family’s point of view, events took a sharp turn for the worse. Falkirk Council became involved in the case and the family heard from a hospital source that the social work department had not only rejected the consultant’s recommendation but was proposing to send Robert ‘somewhere else for the longer term’. The ‘somewhere else’ was not identified, but the family’s suspicions were aroused. Did ‘somewhere else’ mean a mental institution of some sort? This is the fear in the Lapsleys’ minds. It is torturing them. The sense of impending danger (however irrational), the illogical quality of the situation, the lack of clarity – all this, of course, is pure Kafka.
     But there was worse still. A fortnight ago, it became apparent to the family that the social work department intended to seek a guardianship order in respect of Robert Lapsley. His mother was told, or deduced from what she was told, that this was the only way in which Robert could receive the necessary treatment. She was told that ‘this is the law’ and that, if she challenged it, she would face hefty legal costs.
     Is it the law? Or, to be specific, is it the law as it was meant to be?
     The Adults with Incapacity (Scotland) Act 2000 was one of the earliest pieces of legislation passed by the Scottish Parliament. It is benevolent, in theory at least. It is intended to safeguard the welfare and sometimes the finances of people who are unable, temporarily or permanently, to take decisions for themselves. The act ‘allows treatment to be given to safeguard or promote the physical or mental health of an adult who is unable to consent’ – in other words, it confers considerable power.
     Such an order can only be granted by a sheriff and, once awarded, the local authority has a duty to supervise the appointed guardian.

In the case of Robert Lapsley, two questions arise.
     First, why is a guardianship order essential? The family does not understand why Robert would not be eligible to receive the treatment he needs without such an order.
     Second, if for some reason unknown to the family, a guardianship order is essential, why is it the social work department of Falkirk Council which is seeking one?
     According to the guide to the act prepared by the Scottish Government: ‘An application may be made to the sheriff court by individuals, or by the local authority where no one else is applying and the adult has been assessed as needing a guardian’. The italics are mine; the meaning could scarcely be clearer. Where there is an individual with an interest in the adult’s welfare, the local authority has no business applying for a guardianship order. In this case there are three individuals with an interest in Robert Lapsley’s welfare: his mother, his sister Lorraine and his brother-in-law, Jim Waugh.
     Jim Waugh contacted the Scottish Review towards the end of last week in the hope that we might be able to help. I have spoken to him, and to Lorraine Waugh, at length on the telephone. The quality of their devotion to Robert, the extent of their present distress, their utter confusion at being caught up in a world which is completely foreign to them – these are transparent.
     Mr Waugh ended an email to me: ‘None of the family is familiar with the workings of the social work department and NHS in relation to cases like Robert’s…We do find it most strange that someone like Robert is not entitled to the best care available unless there is social work department intervention. We are also most concerned that, should Robert be placed in the guardianship of a social worker, he may be ensconced in an establishment without being given the chance of receiving any type of therapy’.
     A few days ago there was a further development. A student social worker telephoned to summon the family to a hearing at Falkirk Infirmary tomorrow morning. When Lorraine Waugh asked who would be attending, she was given a list of nine – a social worker, a student social worker, a mental health officer, a solicitor (name unknown) from Falkirk Council, a consultant psychiatrist, a doctor who specialises in the treatment of epilepsy, Robert’s GP, a social work team manager and a member of the advocacy service. Jim and Lorraine Waugh believe that the presence of the solicitor is significant: a sign that the council is taking the first steps towards obtaining a guardianship order from the sheriff.
     Jim and Lorraine spent an agonising weekend.

Yesterday morning, I emailed Falkirk Council putting the family’s anxieties. I sent the email to the council’s senior information officer with a copy to the head of social work. I said that the case of Robert Lapsley raised wider issues of public concern about the administration of the Adults with Incapacity (Scotland) Act 2000 by local authorities and suggested that the council might care to reflect on its handling of Mr Lapsley’s case. I said that I proposed to bring the case to the public notice before the hearing on Wednesday. I gave my telephone number. As I write this at 9.30 on Tuesday morning, I have had no reply from anyone at Falkirk Council; not so much as an acknowledgement. I am afraid this does not surprise me in the least.
     At 2.30 yesterday afternoon, just before Lorraine Waugh set off to consult a solicitor who specialises in mental health, she received a telephone call from a member of the social work department. She was assured that tomororw is just a preliminary hearing to discuss Robert’s welfare. When Lorraine asked why, then, a solicitor from the council would be attending, she was told that the solicitor would be there ‘to help Robert’. Jim and Lorraine Waugh concluded that the telephone call was a response to the Scottish Review’s email.
     Meanwhile, Robert Lapsley continues to languish in a private room at Falkirk Infirmary.

If you would like to comment on the wider implications of this case, or know anything about the workings of the Adults with Incapacity (Scotland) Act 2000, please contact islay@scottishreview.net

Read Kenneth Roy in the Scottish Review.