Jenny Kennedy, Partner
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Decision Making in Employment of Support Workers
With the increase in compensation awards for the severely injured, there is a growing economic power amongst the properly compensated. Sufferers of severe traumatic brain injury, who have compensation claims, will have built into their financial awards sums of money for ongoing care and case management. These sums are supposed to be applied towards the purchase of care from family and non-family members and it is usual to provide that this care will, or should, be supervised by a Case Manager and / or Receiver, where applicable. The general principle being that family members and in particular partners and spouses, should remain family members, partners and spouses, not carers.
Further, despite the narrowing of the issues of capacity in the Masterman/Lister case, many sufferers of severe traumatic brain injury will be deemed incapable of managing their own financial affairs, within the meaning of the Mental Health Act, and will be the subject of protection orders, normally administered by Receivers drawn either from the ranks of family or professionals. Receivers can be the solicitor who has had conduct of the compensation claim, or a member of his or her legal company, although, as with Case Managers, solicitors always have to be aware of any potential conflict of interest. The alternative is that the Court of Protection appoints from the ranks of their panel solicitors.
During any litigation case or afterwards the client’s family or Receiver is then left with the administration of the money and the expectation and necessity of using it to the client’s benefit. This can involve appointing a Case Manager and, the generally much more difficult issue of recruiting support workers and maintaining the care regime.
The appointment of an experienced and able Case Manager is dependant upon a number of factors; hopefully the client will have retained an experienced solicitor who has managed to appoint a suitable Case Manager early on in the case (assuming that issues of liability are no obstacle to provisions of funding). If so, the client will be left at the end o the claim not only in possession of some money but also with a capable case management service. The provision of support workers ought to follow on with ease, but it does not always do so, and some of the issues inherent in recruiting and employing people are not always as considered, as they should be.
How do Case Managers make decisions in this respect? As Case Managers know there are many different ways of establishing and running a care regime. A Case Manager or domiciliary care agency can recruit and train a support worker, although agencies usually provide generic courses rather than more specific, client focused training. Some Case Managers recruit support workers directly in liaison with the client or Receivers, the latter acting as employer. The Case Manager deals with job descriptions and contracts and organises the payroll on behalf of their client. The Case Manager oversees the clients’ rehabilitation and ongoing needs and provides the additional training to the carers in respect of the clients’ specific requirements and needs, resulting from the brain injury. These Case Managers have to be registered with the National Care Standards Commission. Some Case Managers assess the clients’ needs and liaise with a registered care agency to recruit and train the support workers, within the basic criteria of the National Care Standards. Many Case Managers can provide both services, recruiting on behalf of clients and via agencies.
There can be enormous practical difficulties – as most experienced Case Managers will know – in the recruitment, training and general maintenance of support workers. Each need provides its own problems – for example finding a daily carer for 4 hours a day in Devon is far easier than getting somebody to come in for 2 hours in central London on a regular basis. Further, whether to employ and provide care, and whether or not the carer should be provided through an agency, or directly by the Receiver, continues to be a vexed, and frankly, ill considered question.
There are numerous factors that determine whether it is better to directly employ or recruit via agencies. These decisions are primarily based on the client’s (i.e. the injured party) needs; their family and social situations and how easily it can be determined as to whom the Employer would be.
All the clients’ needs for support and situations have to be taken on their own merits. It would generally be recommended for the Case Managers to recruit and employ support workers to establish and maintain a cost-effective care regime. This is generally more effective and, if successfully managed, can ensure a committed and consistent team focused on the clients’ and their families’ needs. Private employment reduces the numbers of agencies involved in providing for the client’s needs and the problems about accountability, for instance, to the client, family, Case Manager or the agency, and the resulting conflicts that can arise as a consequence of this. Support workers who apply for work with a brain-injured client are recruited to work specifically with the client, rather than with a number of disabled adults, and training can be focused towards the client’s specific requirements. Agency workers often appear to be more transient. In our experience working with domiciliary care agencies can sometimes be stressful, as they can inadvertently undermine the work being managed by the Case Manager, for example, in rehabilitation programmes, because of their focus on care rather than enabling. Staff members at the care agency usually have limited experience in the field of brain injury and some feel threatened by new, and sometimes challenging, ways of working. One other problem that arises when dealing with agencies is that, in our experience, 25% of agency invoices are incorrect because many of the larger companies use centralised payroll systems. They do not discuss issues with their agency branches and it is a hassle with the larger organisations to get these invoices corrected.
However, for some clients, support workers from domiciliary care agencies would be recommended. Clients, who are early on in their recovery, can progress with rehabilitation and achieve greater independence and require less care. This means that employing support workers may be a costly, time-consuming exercise, with the increased difficulty of finding and training support workers for short-term contracts, Some clients, who are impulsive with sudden and unpredictable mood swings can for trivial or illogical reasons, refuse to work with support workers, or sack them without reason. These clients would not consider disciplinary procedures and this could cause significant difficulties within employment law and increase the likelihood of potential employment tribunals. Some clients and their families have irregular or unpredictable lifestyles, for instance, frequent hospital or respite care admissions or travelling for the spouses’ jobs etc. This can mean that it is more difficult to establish an employment contract to fulfil their specific criteria, without expending large amounts of money, to hold the support workers between jobs.
Whatever the circumstances, the Case Manager needs to liaise with the client, family and the Receiver, so that decisions about whether to employ or recruit via agencies can be made.
Theoretically the client has a choice – but ‘informed’ choice is only informed if all of the issues are properly considered, and the first issue (and often last issue) that is considered by the client, Receiver and often overworked Case Manager is "can we afford this and where will we find the right person" without adding on the further question "and what responsibilities will be incurred when we actually bring an employee into our clients home, both to the client, the employee and ourselves".
Of course, the client is the recipient of the service and the first question that should be asked is whether or not the client has capacity. If s/he does, then it is the clients’ choice, technically, that is their prerogative (even though the client without capacity must be consulted as their input and co-operation is vital to the success of the project). In reality, in conjunction with the client, it is the Case Manager working together with the family and the Receiver who make the choice of who is to provide those services.
The need to provide services is easy to say, but often very problematic to provide. Take the "difficult", awkward and demanding client; it may well take all of the Case Managers time and skill in just keeping the client, let alone taking the responsibility to recruit a support worker. Let alone considering the concomitant legal responsibilities that are attached to direct employment.
If the client does not have full capacity, if s/he is "managed" by a Receiver, how is the situation altered? What is it reasonable to expect the Receiver to do, how exactly should this work be apportioned between client, family, Receiver and Case Manager?
There is a substantial gap between the responsibilities of a Receiver and that which, we hesitate to offer, is actually necessary to promote the proper application of funds and services. The evolution of the role of the Case Manager bridges some, but not all, of that role. The role of Case Manager includes some recommending care packages, upon instruction implementing the provision of the same, noticing what is missing, and recommending bridging that gap, but what the Case Manager does not and cannot do, is make the actual decision on the provision of those services – or the actual spending of the money on the provision of those services. Who does this? The client when s/he has capacity, but if they do not, who then? The Receiver? The clients’ family members?
Technically, the Receiver is responsible for the financial planning and management of the clients (Patient’s) affairs. The Receiver is not responsible for forward planning of care packages, the provision of services, or decision making in terms of who does what, when and how in relation to care. The Receiver has power to spend money on recommendation, but does the Receiver have the power to make the decision of the actual implementation of the package and what happens in those tricky situations, where there is insufficient money, where decision-making is not clear? Where the decision-making involves much more (as it often does) then there is the question "do we have enough money to actually pay for this?"
The problem here is that it seems to be envisaged that the role of Receiver is actually a professional role supplemented by family and professional input. But as we know, the reality is that a proportion of brain-injured clients’ relationships with their relatives have altered as a consequence of their brain injury. Professional Receivers are usually paid appliers and managers of funds; there are huge difficulties in the provision of quality services by professional Receivers, the reality being that for clients it is often the little things that are really important in life which professional Receivers often have little time or motivation to deal with. There is frankly no use in having money if it is not applied for the purpose for which it was obtained.
Technically, major decisions (of the life altering type, for instance, sectioning, abuse, guardianship etc.) falls to the social services team, to the state legislature; but these are often the very people who have "dropped out of the case in reality" as a result of private case management input. Private funding for case managers means that already scarce resources for help (despite statutory requirements) are not generally forthcoming in the absence of obvious crises. Who actually makes the decisions on the provision of services, increasing hours, employing directly, where there is nobody but the family, a Case Manager and Receiver in place or, if conflicts are apparent between these representatives? We all know what happens in reality, but who really does have the legal responsibility?
The extension of this question is – in relation to the clients’ needs for a cost-effective care regime and direct employment of the support worker – who should be the employer? Is it reasonable to expect the Receiver to be turned into a direct employer? What exactly are the responsibilities of direct employment – we suspect that these grow with each EU directive; issues of training, manual handling regulations, anti-discriminatory practices, harassment at work issues (and a lot of our clients are difficult!) and all sorts of stress related questions.
How exactly can we fit together the employment jigsaw and operate it safely and sensibly, remembering that as Receivers and employers we have duties not only to our clients but also to our employees? The reason for obtaining compensation is to actually use that money to ensure that the client can live as normal a life as possible. The methods of establishing the appropriate care regime for the client is integral to ensuring its success.
The answer must be one of education and informed choice, of understanding the requirements with the Case Manager and Receiver discussing the potential options. The Case Manager cannot make financial decisions on his/her own and the Receiver strays beyond their remit in making decisions without the Case Manager’s input. Decisions that are simply too big or involve important ethical issues should be referred either to the Court of Protection or the local social services team, depending on the type of question involved.
The issue of whether or not carers are employed directly must be dependant upon a number of factors; there are some clients for whom direct employment is always going to be a non-viable decision – but as a generality most clients will benefit from carers being directly employed; continuity of care normally being one of the most important issues, and it is cheaper.
Direct employment carries enormous responsibilities, and no carer should be brought into any clients home (on any sort of basis) without these issues being considered. The first question to be asked is who is the employer? Technically of course the client is the employer – but what happens if there is a Receiver and case manager assigned to work with the client.
In reality it is the Receiver, in the client’s place, who is employing the carer. The duties of being an employer fall at the Receiver’s feet, and s/he is free to argue, dependant upon the situation, that the Case Manager has some or all of the responsibility. It is no use for the Receiver to attempt to shift blame onto the client – the Receiver is entitled to an indemnity from the client for the costs/expenses reasonably incurred in the course of their duty, but the Receiver has a particularly onerous task. Having accepted the responsibility of Receivership, if they then put themselves in the position of employer, they must discharge that duty properly or else be potentially negligent for the consequences of failure. The Receiver therefore has the responsibility of ensuring that the Case Manager is fulfilling their duties in respect of employment, as agreed in their service agreement.
Secondly there is the issue of insurance. No carer should be allowed to work with a client without the benefit of employers liability insurance and it is the Receivers duty to ensure that the insurance cover is in place. One of the writers recently took instructions from a carer who suffered a serious shoulder injury whilst working in a client’s home. The carer is looking for financial recompense from her employers. Who are her employers? They happen to be an agency, who is retained by the local authority. The agency has a good track record of the provision of training in respect of manual handling issues and is insured to meet any risk associated with accidents in their clients’ homes. What if there was no insurance in place?
No Receiver should accept the responsibilities of being a direct employer without a proper comprehension of the issues involved, and no Case Manager should seek to implement a care regime without proper consideration and implementation of good employment protection for the carers brought into the client’s home. This does not mean that every case management agency has to turn into an employment agency, far from it! What it does mean though is that the Case Manager and Receiver (or client if there is not a Receiver) should fully consider whether or not they can provide those services or whether or not they must employ through an experienced agency who can provide those services.
Agencies – and larger case management organisations – are quite used to dealing with employment issues; they will retain the services of a good employment lawyer who is able to keep them up to date with changes in employment legislation; they will be able to provide properly designed and enforceable contracts of employment, containing the terms and conditions of employment, to undertake the necessary check on the suitability of temporary staff (imagine the horror of employing a convicted rapist for a vulnerable client) to maintain clear written policies on support worker recruitment, training and development, manual handling training and regular specialist training on an ongoing basis. Plus the provision of proper comprehensive insurance.
There are many Receivers up and down the country who do a good job, and who go well beyond their remit in ensuring the proper application of funding and support for their clients, outside of the big Receivership divisions within various companies. These Receivers whether professional or family, need to benefit from the experience, wisdom and support of Case Managers in respect of the above thorny issues.
If the Case Manager is unable to offer employee training, advice and protection in respect of the Receiver become an employer, then the alternatives must be explored and these alternatives include the utilisation of the services of intermediaries. And this is no bad thing even if it is more expensive. After all – most of the local authorities refuse to accept direct employment and hive these responsibilities out to agencies. If a suitable candidate cannot be found for a job through an agency, there should be no difficulties that the writers can see (apart from financial) in putting a hired candidate under the umbrella of a good local agency who can provide the relevant legislative necessities.
These are issues that are impossible to avoid. The protection and care of not only the client but also the support worker is paramount. The prospect of making a mistake, of having a severely injured carer, as a result of unsafe employment practices and no insurance to cover any award of compensation that may be made to that carer are too serious to ignore.
© British Association of Brain Injury Case Managers 2004
Jenny Kennedy is a Partner with Anthony Gold’s personal injury and clinical negligence teams; she is a co-author of ‘Personal Injury Practice’ (Butterworth Lexis-Nexis), and is a member of both the Law Society’s personal injury and clinical negligence panels. She specialises in serious head and spinal injury work.
Jo Clark-Wilson is the Managing Director of Head First, a company specialising in Assessment and Case Management for Brain Injured Clients and their families. She is co-author of ‘Brain Injury: a Neurofunctional Approach’ and co-editor of ‘Brain Injury: a Practical Approach’ and is Chair of the British Association of Case Managers. She specialises in rehabilitation, case management and care of brain injury clients.
For further information email Jenny Kennedy or call 020 7940 4000.
