The Lapsley case part I

Kenneth Roy
The power of social workers over the vulnerable needs to be questioned and clarified

Kenneth Roy

At 11 o’clock this morning the family of Robert Lapsley will meet (or met, depending on when you read this) a panel of interested parties brought together by Falkirk Council to discuss the future care and welfare of a 45-year-old man, formerly self-sufficient and fully functioning, whose physical and mental health has deteriorated without explanation in the last two years until he now lies in a private room of Falkirk Infirmary, incontinent, helpless, and only occasionally lucid. Nothing we have published in the last two and a half years has produced such an overwhelming response as yesterday’s SR article on Robert Lapsley and the apparent attempt by the local authority to gain control over all vital aspects of his life.
     Within a few hours of SR going online, we had heard from a QC and four solicitors, a champion of patients’ rights, a clinical psychologist, a prominent member of the Scottish Parliament, and other readers with no specialist knowledge of medicine or the law, variously expressing grave concern about the case, incredulity that Mr Lapsley’s devoted family was not being given guardianship of Robert, and a general anxiety about the interventionist power of social workers. We have also received several offers of practical help for the family, including free legal advice; one solicitor spoke to Lorraine Waugh, Robert’s sister, by telephone.
     I said in yesterday’s editorial that, although I had emailed Falkirk Council outlining the causes of the family’s distress, setting out our own objections to the handling of Robert’s case, and making it clear that SR intended to bring it to the public notice before Wednesday’s meeting, I had heard nothing from the council by the time the edition went online around 11am. I must now qualify that statement. Shortly after the edition went online, I did hear from a head of department at the council, although not either of those I had emailed. She said she was ‘touching base’ and that my email had been received; it was clear that she had not read the editorial. When I told her it was already online, she seemed surprised. She said she was ‘disappointed’ that I had written a piece. I replied frankly that Falkirk Council was not handling this well.
     Can I make something clear? When a journalist emails two heads of department at 10.08 on a Monday morning raising serious issues about a matter of public interest, says he is going to write about it before Wednesday, and gives a telephone number where he may be contacted, the public servants of Scotland are entitled to conclude that there is at least a sporting chance something is going to appear on Tuesday.

I have distilled all the correspondence received yesterday into three key questions:
1. Did the social work department of Falkirk Council attempt to overturn the recommendation of a doctor – a consultant – about where Robert Lapsley should be cared for?
     There appears to be some disbelief that such a thing could have happened.
     It is the family’s firm testimony that a named consultant decided that Robert should receive ‘one to one therapy and rehabilitation’ in a named nursing home and that a named social worker, having studied the case notes, informed a named senior member of staff at Falkirk Infirmary that she intended to place him ‘somewhere else for the longer term’. Although the ‘somewhere else’ was not identified, the family took this to mean an institution of some sort; this possibility is the source of most of the family’s fear.
     The names of all the individuals concerned, and the name of the nursing home recommended by the consultant, are all known to the Scottish Review.
     So far at least, Falkirk Council has not denied any of this, although as we go to press I learn that the rejection of the nursing home may have been a ‘misunderstanding’.
     Unless there is a satisfactory rebuttal, several more questions arise.
     (a) In what circumstances is it permissible for a social worker to reject a consultant’s recommendation about what is best for a patient or indeed to influence the medical care of a patient in any circumstances?
     (b) Falkirk Council holds no guardianship or intervention order in respect of Robert Lapsley at present, although it seems it wishes to obtain one. That being so, what power does Falkirk Council believe that it is exercising in attempting to influence or overturn a clinical judgment?
     (c) Where does this leave the independence and integrity of the medical profession?
     (d) How often does it happen?

2. Are social workers exceeding their powers under the Adults with Incapacity (Scotland) Act 2000 in seeking guardianship orders?
     A guide to the legislation has been prepared by the Scottish Government and is freely available on the internet. It is explicitly stated that a local authority may seek a guardianship order only if there are no individuals with an interest in the person’s welfare. (In the case of Robert Lapsley, of course, there are three such individuals: his mother Sylvia, his sister Lorraine and his brother-in-law Jim.) Yet the council has told the family that it intends to apply for such an order.
     If the answer to this question is ‘No’ – i.e. social workers are not exceeding their powers under the act – then the official guide to the legislation is badly flawed, seriously misleading, capable of doing great damage to families at their most vulnerable, and should be amended as soon as possible in the public interest.
     If the answer is ‘Yes’ – i.e. social workers are exceeding their powers under the act – the Scottish Government should issue firm guidelines to local authorities about what is proper under the act. The suggestion in Ewan Kennedy’s article today that social workers attending courses on this law may be being encouraged to seek guardianship is extremely disturbing.

3. Are reasonable procedures being followed?
Robert’s case conference (if that is indeed its status) in Falkirk today was called only last week. Lorraine Waugh, the patient’s sister, had to inquire on the telephone who was attending and was shocked to be given eight names, plus an un-named solicitor representing the local authority. The call informing the family of these arrangements was made by a student social worker. More than one reader has asked what it will cost to bring so many professionals together to further Falkirk Council’s unwanted interest in this case.
     The short notice given to the Lapsleys means that the family will not be legally represented. A leading advocate of patients’ rights contacted SR to say that, in his view, the family should have refused to attend such a hearing until it had had a reasonable opportunity to prepare and to secure legal representation. The family had, however, been warned by a social worker about the hefty legal costs it might incur in any challenge to the council’s proposed course of action. The lawyers who have been in touch with us insist, on the contrary, that the family will almost certainly be entitled to legal aid.
     Before SR told Falkirk Council that it was investigating Robert Lapsley’s case, the family had not been given any papers about its rights under the legislation. Urgent steps have since been taken to ensure that the family did receive these papers. By then the family had spent anxious days and nights on the internet and were broadly familiar with their rights.

4. Could any of us, in a state of incapacity, become the subject of a guardianship order awarded to a local authority in defiance of the wishes of our family?
     Evidently yes. See Ewan Kennedy for a shocking example from his own experience as a family solicitor.

One final point for today: the family of Robert Lapsley claims emphatically that it has been warned by a social worker that, unless the council obtains guardianship of Robert, he will not receive the treatment he requires and the family will be left to pay for any such treatment. Readers will have their own words to describe such an approach to the care of a man in desperate need. Falkirk Council has a duty either to withdraw this claim or to clarify exactly what it means.

Click Here for Part II

Read Kenneth Roy in the Scottish Review.