The Lapsley case – Day 3: The absentees

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Kenneth Roy

When the family of Robert Lapsley arrived for yesterday’s hearing called by Falkirk Council to consider the future care and welfare of a 45-year-old man reduced to incontinent helplessness, they came prepared with a list of questions for the doctors responsible for his medication. The family had been informed that both doctors would be present….

Kenneth Roy

When the family of Robert Lapsley arrived for yesterday’s hearing called by Falkirk Council to consider the future care and welfare of a 45-year-old man reduced to incontinent helplessness, they came prepared with a list of questions for the doctors responsible for his medication. The family had been informed that both doctors would be present. The family hoped and expected that these doctors would have a view on the reasons for the complete disintegration of Robert Lapsley’s physical and mental health since he was prescribed a new drug for his epilepsy two and a half years ago; and that they would be able to recommend a course of action to alleviate the patient’s wretched condition in a private room of Falkirk Infirmary.
     Neither turned up.
     The meeting was chaired by a senior social worker described as a ‘team manager’. At the start, Lorraine Waugh, Robert’s sister, asked for permission to tape-record the proceedings. This was refused. Lorraine then asked: what is the purpose of this meeting? what reasonable outcome can the family expect? The chair replied: ‘This is the initial process’. But of what? Falkirk Council was legally represented – by one of its own solicitors, it seems.
     The signals were conflicting to say the least. On the one hand, there was a denial that a member of the social work department had rejected a consultant’s recommendation that Robert should be transferred to a nursing home for ‘one to one therapy and rehabilitation’ in favour of her own preference of ‘somewhere else for the longer term’; and a further denial that the council intended to seek a guardianship order under the Adults with Incapacity (Scotland) Act which would have conferred on the local authority considerable power over all aspects of Robert Lapsley’s life. The family’s simple reply to these denials is that three members of the family heard what they heard – within the last fortnight at that.
     On the other hand, there was an assurance that Robert cannot be moved anywhere without a guardianship order; and the ambiguous reply of the council’s lawyer who, when asked what he was doing at the meeting, said he was there to give legal advice if it was decided to ‘go for guardianship’. Since, clearly, the council’s solicitor would not be representing the family in ‘going for guardianship’, and since the council now denied intending to do so in the first place, we are entitled to wonder which party the lawyer felt he would be representing if it was decided to ‘go for guardianship’.
     It is the family’s testimony that, as the meeting broke up, the chair said: ‘We will continue with our application’. At which the clinical psychologist assisting the family retorted: ‘I hope that doesn’t mean you’re applying for an adult with incapacity order’. There was no response.

Three hours later, clarity of a sort arrived in the form of a statement from Falkirk Council:

Falkirk Council will not discuss individual social work cases publicly. We have a duty to respect the confidentiality of our service users.
     The Council works within the framework provided by the Adults with Incapacity (Scotland) Act. We would only intervene to apply for a guardianship order where this was necessary and for the benefit of the adult and no-one else was proposing to make an application. We have a duty to so in those circumstances.
     In order to take the decision on whether an application for a guardianship is necessary, our approach is arrange for relevant professionals and family members to meet in order that full information is available and all views can be taken into account.
     Guardianship orders are most often required where a decision on the long term residence to meet the care needs of an adult needs to be taken, the adult cannot make that decision on account of their incapacity and there is no other person in place with authority to take the decision, for instance, where a welfare power of attorney has been granted by the adult.
     Ultimately, the decision on whether a guardianship order is necessary is for the sheriff, not the Council.
    Adults involved in this process will be provided with an independent advocate who will be available to advocate for them.

We should never cease to be impressed by the bureaucratic ability to reduce the human race – even suffering members of it – to the status of ‘service users’. We should never cease to be bemused by the almost invariable official recourse to ‘confidentiality’ even when the service users whose confidentiality is being ‘respected’ long most of all for a candid and open discussion of their case.
     Nonetheless, we must be grateful for Falkirk Council’s statement to the Scottish Review yesterday afternoon. It defines the limits of the council’s powers. It makes it clear that, whatever was said by social workers in this case, and whatever they are being encouraged to do in general under the legislation, SR’s interpretation of the law is correct: a local authority is not entitled to apply for a guardianship order where there is an individual (in this case three individuals) with an interest in the patient’s welfare.
     So a kind of victory has been achieved. But it is not a victory for Robert Lapsley. There remains the issue of his desperate health. Was it an adverse reaction to new medication? Why were his and his family’s complaints about the apparent side-effects of this medication disregarded? If, however, it was not an adverse reaction to new medication, what else might it be? Is there any hope of recovery, even partial? What form of treatment would be best? We are no nearer having these questions answered. The doctors who prescribed the medication were not present yesterday to deal with any of them. And, most urgently, Falkirk Infirmary closes in a few weeks – yet we are told that Robert cannot be moved anywhere without a guardianship order and that such an order might take many weeks if not months for his family to obtain.
     A former chief social work adviser for Scotland says elsewhere in this edition that SR’s exposure of the Lapsley case should lead to new and better legislation to support such vulnerable people. We hope he is right. But there is a more immediate dilemma.
     What is to happen to Robert Lapsley? Where is he to go?

You can read the first two article written by Kenneth Roy about this case by visiting Speakers’ Corner or by visiting the excellent Scottish Review.

Read Kenneth Roy in the Scottish Review.