Milestones and millstones: manual handling, past, present and future

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1 Milestones and millstones: manual handling, past, present and future Michael Mandelstam, January 2015 The voices over the years When I was a newly qualified physio, I had no proper training/supervision. Back injury in my first year. I was lucky. Because I have managed that injury ever since, with daily exercises. I still do manual handling in rehabilitation. Know how to manage risk. Therapy manager, At last the Manual Handling Operations Regulations The cavalry has arrived. Manager: We don t do lifting. We don t do manual handling. If we have to touch people, we should hoist. That is the law. Manual handing law and rules: the death knell for rehabilitation 1

2 More voices We don t do legs We don t do coal scuttles There are lots of rehabilitation beds in Suffolk: in people s own homes Phyios: We can t do certain rehab in people s homes. Heavy equipment? Environment? Family dynamics? Risk manager to physios: Stop moaning: you shouldn t be touching patients anyway. I am entitled to be manually handled rather than hoisted. My human rights come before everything else: I am not a lump of concrete. More voices still I can do what I want with my direct payment by way of manual handling. It is my responsibility as employer. Half these people we teach manual handling to, shouldn t be working in care at all. They are too unfit to be caring for anybody. Hoisting must always be double-handed We make double-handed hoisting the exception Higher risk well managed is less dangerous than lower risk poorly managed 2

3 Moving out of the 1980s and the bad old days During the 1980s, the Royal College of Nursing supported manual handling legal cases aimed at getting the courts to impose liability on health authorities for injuries to nursing staff. In particular, it was important for organisations to be held accountable for poor systems of work, when senior minds and management had not applied themselves to tackling the issue (e.g. Munrow v Plymouth Health Authority; Clarke v Oxfordshire Health Authority). A European directive on manual handling (90/269/EEC) laid the ground for the Manual Handling Operations Regulations They were perceived as a major step forward in protecting employees from injury. For the next decade, the fight was rightly to protect health (and social care) staff from avoidable, debilitating injury and from being sacrificed by heedless employers. The battle lines seemed clear. Reducing or avoiding risk as far as is reasonably practicable: Manual Handling Operations Regulations 1992 Blurred battle lines, balance and human rights: the 2000s By 2003, we had the case of R(A,B, X and Y) v East Sussex County Council. It highlighted that, in the rush to protect employees, restrictive and crude manual handling policies had sprung up in health and social care, some of which bore the hallmarks of ignoring that the person being handled was actually animate. Even before the East Sussex case, it was clear from a legal point of view that the combination of welfare (social services and NHS), health and safety at work and human rights legislation meant that balanced decision making was required 2003: National Back Exchange s annual conference, with the most memorable of titles: Humanising the Load 3

4 East Sussex case: article 8, dignity, context and saints The recognition and protection of human dignity is one of the core values, in truth the core value, of our society and, indeed, of all the societies which. have embraced the principles of the Convention. But, and this is the first point, insistence on the use of dignified means cannot be allowed to obstruct more important ends. On occasions our very humanity and dignity may itself demand that we be subjected to a certain amount sometimes of a very great deal of indignity If A and B have dignity and other interests protected by article 8.then so too in principle do their carers civil society cannot expect of its nurses, care assistants and others in similar positions, the abnegation and self sacrifice of a Mother Teresa. Example of balance, 2014, 12 years on: reasonable practicability under Manual Handling Operations Regulations Woman: learning support assistant (LSA). Mainstream secondary school, with 1,400 pupils of whom about 40 had special educational needs, with 8 needing some degree of wheelchair use. Work included pushing students in wheelchairs between classrooms and elsewhere, and assistance with other activities requiring movement. Started 1 September Attended training sessions on first two days and spent next three days shadowing another LSA. On own from 6 September. On 17 September she experienced pain in her shoulder and back after pushing one particular student (the student) in her wheelchair. It was not possible to avoid pushing students in wheelchairs and even if they had all had powered chairs there was still a need for manual handling in carrying out toileting, feeding and other tasks. The defendants had no control over the type of wheelchair that a student used and giving every student a powered wheelchair would have militated against that student s progression towards rehabilitation and independence. (Sloan v Rastrick, Court of Appeal, 2014) 4

5 2015: human rights, mental capacity, safeguarding, personalisation: uneasy bedfellows But by 2015, we realise we have moved on yet again. On to the manual handling stage have stepped, alongside the Human Rights Act 1998, the Mental Capacity Act Followed in April 2015 by the Care Act 2014, with its attempt to blend personalisation and safeguarding These pieces of legislation and policy are not straightforward. At root is the tension between the autonomy of the individual and protective interventions by public bodies. Safeguarding carries protective overtones personalisation pulls toward self-determination. The two don t always mix. Article 8 of the European Convention: the mediator between autonomy and protection? Article 8 of the European Convention on Human Rights talks of the right to respect for private life, family and home. Interference by public bodies is justifiable if it is: lawful, necessary in a democratic society for a particular purpose (including health, prevention of crime, economic well-being of the country, protection of the rights and freedoms of other people) Article 8 lay at the heart of the East Sussex case It is the pivot on which many mental capacity and safeguarding legal case turn 5

6 Mental capacity, wise decisions, unwise decisions, best interests and risk Contained within s.1 of the Mental Capacity Act 2005 is the strain between autonomy and protection. On the one hand, the so called right to take unwise decisions. Or, more accurately, the fact that a person with a disturbance of mind or brain takes an unwise decision, does not necessarily signify a lack of capacity to take that decision. On the other, a best interests decision taken for a person lacking capacity should rarely, if ever, be unwise (In the matter of P). However, wisdom in this context does necessarily mean freedom from physical risk. This is because any such risk might be set off against, and justified by, a person s psychological and emotional needs, as well as quality of life (Re M (Best Interests: Deprivation of Liberty)). Mental capacity, risk, professional views and safeguarding: hoist and sling use As Mrs H s husband, and within the privacy of their own home and relationship, Mr H is not bound to follow professional opinion in every respect, provided that he has good reasons for believing that his wife [albeit lacking capacity] would prefer him to provide care in a different manner at times, and he uses his long-gained expert understanding of her likes and dislikes, comfort and discomfort, to arrive at a reasonable view as to why it would benefit her to take an advised risk. Such acts would be based on a reasonable belief that the care is in her best interests, and covered by section 5 [of the Mental Capacity Act]. While I must accept that there is a risk to the integrity of the skin, Mr H has learnt that use of the sling enables Mrs H to get out of bed, to participate more, and to be in less pain. Within the privacy of their own home, that appears to be a reasonable position for a married couple to take (JH v A London Council, 2011). 6

7 Hollow men and women? There is little about the JH case that is easy. But then the courts have pointed out that ideal solutions may be elusive for those lacking capacity: physical safety but misery in a nursing home - or more physical risk at home but emotional and psychological benefits Nor should we view these legal cases as negative criticism of practitioners and their employing organisations. In fact, they provide often enlightened judicial pointers to help with the making of decisions that uphold people s dignity. The challenge in manual handling a decade ago was to humanise the load under health and safety at work legislation. A similar issue has now arisen in relation to mental capacity. The courts seem to be reminding us of a principle that those who lack mental capacity are still people body and mind. They are not hollow men and women, not merely mechanical objects. Care Act 2014, Regulations and Statutory Guidance (and ramifications for manual handling) in force April 2015 Consolidates and replaces a huge amount of adult social care legislation Introduces the concept of individual well-being (for adults in need and for carers) which local authorities must promote Emphasis on generally available (not dependent on eligibility) services that prevent, delay, reduce needs for adults in need and informal carers Encourages local authorities to provide intermediate care/reablement, equipment, minor adaptations (up to 1000) as preventative services (s.2) not just after assessments (s.9) decisions about eligibility (s.13) More integrated working: health and social care (Better Care Fund) Market shaping: LA duties to improve quality of local care services including staff with relevant skills and appropriate working conditions 7

8 Care Act: ramifications for manual handling? Assessment: duty on local authorities to have assessors with skills, knowledge and competence. And to consult experts where necessary Supported self assessment & joint care and support planning Personal budgets and direct payments Enhanced rights for informal carers to assessment/support, if they meet eligibility criteria eg. where their physical or mental health is, or is at risk of, deteriorating, with a significant impact on their well-being Duty to make enquiries into abuse or neglect: are local authorities going to strike the right balance between tackling manual handling issues as a care issue and a safeguarding issue? Prisons? 8