Direct payments can offer greater choice and control (Harkes et al 2012), but this research has identified that little is known about how these are working in practice for those people who lack the capacity to consent to receiving one.
The Department of Health’s 2009 Direct Payments Guidance specified the ways in which individuals who lack mental capacity to consent to a Direct Payment could receive one via a ‘suitable person’.
A ‘suitable person’ then receives and manages the money on the individual’s behalf, making best interest decisions on how to spend that money. This research called this funding arrangement an ‘indirect payment’.
The research was carried out by the Mental Health Foundation and the Norah Fry Research Centre. The researchers carried out semi-structured interviews in order to explore the experiences of ‘indirect’ payments with samples of 67 practitioners and 18 ‘suitable people’ (these should now be referred to as ‘authorised persons’ under the Care Act 2014) in six English local authorities.
The study showed positive outcomes being achieved by suitable persons for individuals lacking capacity to consent to direct payments, with each of them stating that they would choose indirect payments again as a funding arrangement. They felt that they were able to personalise support services to suit an individual’s needs, although they, along with practitioners, emphasised that there were challenges in respect of the processes involved in the administration of the payments.
The research found that capacity assessments were inconsistent. It was found that 4 of the 18 indirect payments appeared not to be operating in accordance with the law, where a suitable person believed an individual to lack capacity, yet that individual was receiving the payment in their own name. Conversely in other cases the paper states that there was evidence that an individual did not lack capacity at all and as such should not have had suitable persons involved.
Practitioners demonstrated a good understanding of language and processes surrounding best interest decision making. However, the study found that the individual concerned was rarely involved in the decision-making process, contrary to the Mental Capacity Act and its guidance.
There was a suggestion in the research that practitioners only considered family members for the role of a suitable person and that this could be seen as a model of convenience, and also that the role of the suitable person in the support planning process was variable. It was also identified that support was often missing for suitable persons managing an indirect payment.
The study reported some ‘clear benefits’ of a Direct Payment being arranged in this manner for some recipients. Examples included the ability to personalise support, tailoring activities to suit the individual and ensuring that the timing and structure of the service was what the individual wanted.
The paper nevertheless considers that there are some concerns, citing confusion over assessments and some aspects of the best interest decision-making processes as key points. The research concludes that improvements could be made to the way in which suitable persons are identified and supported.
The researchers suggest that suitable persons need training and support, whilst practitioners need continued professional development and supervision in the relationship between the Mental Capacity Act 2005 and Direct Payments.
The study recommends improved partnership work, scrutiny and monitoring of indirect payments by local authorities, bearing in mind the vulnerability of recipients and complexity of the funding arrangements.
Strengths and limitations
The study is one of the first to explore the translation of mental capacity legislation into Direct Payment practice from the perspectives of practitioners, suitable persons and recipients. This is helpful, as it provides a direct insight into how effective and beneficial (or otherwise) these funding arrangements are for the individuals who use them.
Local authorities will have different processes in the management, implementation and monitoring of ‘indirect’ payments. In exploring experiences within 6 different authorities, the research can be seen to have a fairly broad cross-section of views, adding robustness to the recommendations made.
The recommendations themselves could be helpful in raising awareness within authorities as to how the provision of ‘indirect payments’ could be improved.
It is beyond the scope of the research to be able to offer practical ideas and solutions as to how some of the recommendations could be put into practice, and it might have been useful for the study to have highlighted some examples of specific practices which are proving particularly empowering, or working particularly well.
Summary and analysis
Previous research has evidenced the potential for direct payments to empower individuals, offer choice and control, and achieve positive outcomes (Cambridge and Carnaby 2010).
The findings of this study demonstrate that ‘indirect payments’ are able to work in much the same way, and can prove equally as effective. This will depend on the effectiveness of any suitable person, and there is little doubt that there is scope for abuse within such a funding arrangement.
The notion that primarily considering family members as suitable persons is a model of convenience is open to challenge. It is doubtful that family members would be the only consideration, but in most cases they would be the most appropriate.
The theme identified was that practitioners used a “relatively informal process” to identify and appoint suitable persons. The authors then speculate that this may be a model of convenience based on their own observation, as they note that all the people with learning disabilities had parents as suitable persons.
Arguably, an ‘indirect’ payment would best be managed by a person who not only wants the best for the individual, but also knows that person very well and understands what they would like to achieve.
In most cases, this is likely to be family members. It is nevertheless vital that practitioners consider the complete context of an individual’s life in order to identify the most appropriate person.
It is interesting to note that suitable persons were inconsistently involved in the support planning process. It is feasible that an individual could lack capacity to consent to a direct payment yet would still be able to communicate their desired outcomes.
However, the suitable person would nonetheless need some involvement as they are responsible for administering the payments. Many individuals may not be able to explore what options are available or how to access them, and in such cases it would be essential for the suitable person to have close involvement in the support planning process.
A balance needs to be struck between effective monitoring of indirect payments and providing individuals with a sense of ownership, freedom and liberty. Carrying out direct payment audits can feel oppressive and can challenge the relationship between the practitioner and the individual.
A number of local authorities now offer direct payment cards, removing the need for audits as the local authority is able to monitor how the direct payments are used at arm’s length.
This may not work for everyone, as in some instances the ability to withdraw cash is not an option, but it does allow for more effective monitoring, minimising the risk of abuse, whilst reducing the rather high levels of scrutiny that an audit process requires.
‘Indirect payments’ for people who lack capacity: How are they working in practice? NIHR Research Findings
Cambridge, P; Carnaby, S. (2010) Person Centred Planning and care management with people with learning disabilities. Jessica Kingsley Publishers, London
Department for Constitutional Affairs (2007) Mental Capacity Act 2005 Code of Practice, The Stationary Office, London
Department of Health (2009) Guidance on Direct Payments: For Community Care, Services for Carers and Children’s Services, Department of Health, London
Harkes, M.A; Brown, M; Horsburgh, D. (2012) Self-directed support and People with Learning Disabilities: a review of the published research evidence, British Journal of Learning Disabilities, 42, 87-101
Direct Payments: Are they working well for people with learning disabilities who lack mental capacity to consent? – http://t.co/Ub85C9DaZL
Are direct payments working for people with learning disabilities or dementia? http://t.co/Bmbj73adok
@A1Corrigan @LearningDisElf I think the research suggests that they are working well for lots of people that use them.
Balance needs to be struck between effective monitoring of indirect payments & providing individuals with ownership http://t.co/Bmbj73adok
Don’t miss: Are direct payments working for people with learning disabilities or dementia? http://t.co/Bmbj73adok #EBP
@LearningDisElf are they using ‘indirect payments’ to mean what everyone else uses ‘direct payments’ for? Bit confused. #EBP
@copperbird @LearningDisElf Direct payments managed by ‘3rd party’ (suitable person). Known as ‘facilitated’ DP in some authorities.
@deepleeder @LearningDisElf ah thanks, hadn’t seen that usage before
Are direct payments working for people with learning disabilities or dementia? Fantastic research @NHS_EDC http://t.co/KxEeCoJpXN
It is strange that there is no mention of using an Independent Living Trust (sometimes called a User Controlled Trust) – see: http://www.devon.gov.uk/setting_up_a_user_controlled_trust_for_direct_payments-6.pdf
We have done this – for all the reasons explained by the link but primarily because we know we won’t be around for ever so there needs to be a way of making our son’s support with DPs sustainable.
Just found this – 4 months late but issue still very relevant.
Yes, when well set up and managed , care received by direct payment will offer safe and flexible support. But many councils take their responsibilities far too lightly, if they understand them at all. If direct payments are improperly and illegally set up, as 4 out of 18 were found to be in this study, it leaves people and their families open to huge risks. If there was an employment issue in the cases mentioned – where a suitable person believed an individual to lack capacity, yet that individual was receiving the payment in their own name – the implications are horrendous. For example a personal assistant employed to support the individual takes the employer to an employment tribunal, following a disagreement. The individual clearly lacks capacity to receive the direct payment but is still named on the direct payment contract and maybe on employment contracts too. Problem.
Yes, I agree – ‘practitioners need continued professional development and supervision in the relationship between the Mental Capacity Act 2005 and Direct Payments’. And ‘improved partnership work, scrutiny and monitoring of indirect payments by local authorities’.
But in addition councils must ensure they have a firm grip on employment law in relation to direct payments, must provide or contract expert support services who really know their onions and must listen to those very same support services.
Thanks for your comments Peter. It interested me that the research did not mention the implications of direct payments being arranged in what is essentially an illegal manner. The notion of an ‘indirect’ DP having been set up despite a belief that an individual HAS capacity is itself highly dubious.