Paul Ridout, Managing Director of Solicitors Ridouts Professional Services PLC, on how to deal with unruly resident family members.
You’ve all had one! Turns up at antisocial hours, interferes in care, upsets the staff, makes constant complaints without basis, instructs care changes against professional advice. These are difficult problems and need firm and fair handling. Here’s a few initial pointers:
- Make sure you document any event- facts, times and dates (use a diary). Otherwise it will be denied!
- Be understanding reasonable and proportionate – people do react nervously to change combined with the distress of a declining relative; do not be too quick UNTIL…
- It is clear you have a significant problem. Then act decisively and quickly.
- Remember that the resident is your concern not significant others, however, significant they think they are.
It is your home. You have the right to control who comes, who goes and how they behave. The only exception is CQC and even then they can be restricted if there is a reasonable excuse (which is an almost “never” event).
If you decide to restrict times or conduct of visitors, you may do so BUT you should have a good reason and act reasonably. Be proportionate. The diary will be a vital tool.
THE RESIDENT…has the absolute right to refuse any visitor for any purpose. Unless the resident lacks capacity their decision is absolute. Even if the resident lacks capacity, their wishes may be so clear that a best interests decision to exclude may be obvious. In borderline cases a more measured decision should be taken to what is in the residents’ best interests. Remember it is the resident’s interests (and the interests of other residents) which have to be balanced. The interests of visitors are not relevant.
THE VISITOR…has effectively no rights, particularly if their conduct is unacceptable.
The expression “next of kin” has no meaning and carries no rights. The only person with any rights is a person who holds a Lasting Power of Attorney which has been effected by a lack of capacity and, then, only in the particular areas permitted finance and/or health and welfare, or, a Court of Protection Deputy. Even those would not be able to assert their rights of representation to counter a provider’s decision to exclude for good cause.
THE LOCAL AUTHORITY
These decisions are for the Provider – You. The Local Authority has no power to override your decision. However, it will be reasonable for you to be expected to explain your decision. Safeguarding is most likely engaged where the impact of conduct on the resident is considered. The visitor has no right to visit against a clear decision to exclude. It will be rare that there will be any credibility in the proposition that the resident is at risk of harm by a visitor being excluded or visits managed.
Hidden cameras are becoming more prevalent. The use of such cameras without the consent of both the provider and the resident is unlawful. BUT… Cameras can be useful protection for staff and residents. You may remove cameras. The cameras are the property of whoever placed them. In such circumstances we recommend a joint agreement as to the placing and use of cameras to give comfort. Now there are even real time apps which enable oversight at any time. The steps should be taken by agreement and managed by the provider.
THE REGULATOR (CQC)
The Regulator will expect provision of facilities for visitors. However, it is for you to manage the detail. CQC cannot force you to permit access against your reasoned management decision. Once again your diary is vital as is the rationale for the decision.
DO NOT be scared of the disruptive visitor. You are in control. Effect their control quickly (once you have made the reasonable decision) firmly and fairly.
AVOID discussion and stay out of expensive litigation. This should be simple if you have prepared your DIARY and REASONABLE ACTIONS.