Discussing hoarding, DOLs and lack of capacity and charging

Waste landfill iStock 000005619965XSmall 146 x 219In an update on recent developments in adult social care and mental health, Carolyn Whaymand looks at hoarding, deprivation of liberty safeguards, lack of capacity and charging for care home fees.

Hoarding

Hoarding has become the new trend for reality TV, giving us all an opportunity to cringe at the state of other people’s homes and how much “stuff” people keep. However, for those of us working in adult social care, we are all too aware of the problems this condition causes and the legal nightmare of dealing with service users with this problem.

The Diagnostic and Statistical Manual of Mental Disorders, which was first published in 1952, is the American publication used globally by health professionals, insurance companies and pharmaceutical companies to consider medical conditions.

The Diagnostic and Statistical Manual of Mental Disorders is proposing a new definition of mental disorder:

  • A behavioural or psychological syndrome or pattern that occurs in an individual;
  • That reflects an underlying psychobiological dysfunction;
  • The consequences of which are clinically significant distress (e.g., a painful symptom) or disability (i.e. impairment in one or more important areas of functioning);
  • Must not be merely an expectable response to common stressors and losses (for example, the loss of a loved one) or a culturally sanctioned response to a particular event (for example, trance states in religious rituals);
  • That is not primarily a result of social deviance or conflicts with society.

From May 2013 Hoarding Disorder was to be listed separately as a condition in its own right. Previously hoarding was included within Obsessive Compulsive Disorder.

Hoarding is defined as the acquisition of, and inability to discard, items even though they appear (to others) to have no value.

This is a different condition from Diogenes Syndrome which is a behavioural disorder of the elderly. Features include extreme self-neglect, domestic squalor, and tendency to hoard excessively and is associated with self-imposed isolation, refusal of help and marked indifference or lack of awareness.

It is unclear what causes Hoarding Disorder but it may be caused by a form of trauma either now or in the past. Interestingly, there is no evidence to suggest it is related to an experience of material deprivation.

It has been shown to cause substantial disability through social isolation, it affects the ability to work, can lead to threat of eviction and is linked to homelessness. It has a devastating impact on family life and can amount to health risks, fire hazards and even death.

There are new psychological treatments for hoarding which appear to be more successful if targeted to hoarding and not the more general condition of OCD.

In terms of the legal position, as hoarding is now officially recognised as a distinct mental disorder, it means that in certain circumstances, it will be possible to take proceedings under the Mental Capacity Act when dealing with the condition.

It will be important to obtain the correct medical evidence to question capacity around the person’s ability to make decisions in respect of their hoarding and obviously, the decisions sought will need to be the least restrictive. However, it does mean that in more severe cases it gives a range of potential remedies that the current recourse to the law does not give. Watch this space for up and coming cases!

Deprivation justified where preventing offending

The case of Y County Council v ZZ dated 25 July 2012 (only just published) details the case a man with learning disabilities who was sexually interested in children. He was placed under guardianship and had severe restrictions placed on his freedom. He consistently objected to these restrictions. However, the judge held that the deprivation was lawful. He stated that the measures were in ZZ’s best interests because “they are designed to keep him out of mischief, to keep him safe and healthy, to keep others safe, to prevent the sort of situation where the relative of a child wanted to do him serious harm which I have no doubt was very frightening for him, and they are there to prevent him for getting into serious trouble with the police.”

This would seem to be a useful case for dealing with those service users who are a high risk to others and therefore at risk of harm and getting into trouble themselves. However, within this case there seemed no consideration his capacity around issue specific decisions or what would be the least restrictive options. It would therefore appear that in this case the Court adopted a “no risk” approach. It remains to be seen if the Court would adopt this approach in all cases of high risk.

Lack of capacity is irrelevant to liability for care home fees

In Harrison v South Tyneside Council in the HM Land Registry Adjudicator Decision Ref/2012/886 an elderly gentleman with dementia, who lacked capacity to decide where he should live, was placed in residential care by the Council until he died. The administrator of his estate advanced various arguments around why he should not have to pay for his care fees. All arguments were rejected. It was held that if an assessment of accommodation costs has been properly made, and the only reason the person accommodated does not know of the amount due is because they lack the necessary mental capacity, they are still liable.

This is an interesting case as it shows how far reaching the Mental Capacity Act can be and also is a hot issue for authorities given the tight constraints on finances.

Carolyn Whaymand is a senior solicitor in the People Department at Essex Legal Services. She can be contacted on 01245 506611 or by This email address is being protected from spambots. You need JavaScript enabled to view it..