17. Prisons, approved premises and bail accommodation

Transcription

1 17. Prisons, approved premises and bail accommodation Prisons, approved premises and bail accommodation This chapter provides guidance on section 76 of the Care Act It also provides guidance on other sections of the Act where they relate to care and support for adults in prison, approved premises and bail accommodation and those released from custody. This chapter covers: Information sharing; Assessments of need; Assessments of a carer s needs; Charging and assessing financial resources; Next steps after assessments; Direct payments and deferred payment agreements; Continuity of care and support when an adult moves or is released; Partnerships and interdependencies; End of life care; Safeguarding adults at risk of abuse or neglect; Transition from children s to adult care and support; Independent advocacy support; Complaints; Standards and assessments People in custody or custodial settings who have needs for care and support should be able to access the care they need, just like anyone else. In the past, the responsibilities for meeting the needs of prisoners have been unclear, and this has led to confusion between local authorities, prisons and other organisations. On occasion, this has meant that people s eligible needs have gone unmet, with an impact on their health and wellbeing, as well as on their longer-term rehabilitation. Section 76 of the Care Act sets out to clarify local responsibilities, and to describe how the partners involved should work together Throughout this chapter, references to custody or custodial settings only relate to prisons, approved premises and other bail accommodation. It can also apply to people aged over 18 years in young offender institutions, secure children s homes and secure training centres. Please see the

2 262 Care and Support Statutory Guidance Definitions section below. People bailed to a particular address in criminal proceedings are, like those in prison or approved premises, treated for the purposes of the Care Act as ordinarily resident in the local authority where they are required to reside and the provisions in the Care Act apply accordingly The guidance in this chapter relates only to custodial settings in England The Act and this chapter applies to anyone residing in a custodial setting. Where they have previously been detained under sections 47 and 48 of the Mental Health Act 1983 and transferred back to prison their entitlement to Section 117 aftercare should be dealt with in the same way as it would be in the community 140 apart from any provisions which are disapplied in custodial setting, such as direct payments and choice of accommodation, which are set out in more detail below This chapter of the guidance does not apply to individuals aged under 18 years. Details of where to find information on provision for children can be found at the end of this chapter. Please refer to paragraphs of this chapter for information about transition from children s to adult care and support in custodial settings. For more detail please see chapter 16 in this guidance on transition from children s to adult care and support All adults in custody, as well as offenders and defendants in the community, should expect the same level of care and support as the rest of the population. This principle of equivalence of care forms the basis of the policy intent for the Act and this guidance. This is crucial in ensuring that those in need of care and support achieve 140 Mental Health Act 1983, section legislation.gov.uk/ukpga/1983/20/section/117 the outcomes that matter to them, and that will support them to live as independently as possible when leaving prison. In addition to ensuring that individual needs are met, this will contribute to the effectiveness of rehabilitation and improve community safety Local authorities are responsible for the assessment of all adults who are in custody in their area and who appear to be in need of care and support, regardless of which area the individual came from or where they will be released to. If an individual is transferred to another custodial establishment in a different local authority area this responsibility will transfer to the new area. The prison or approved premises to which an individual is allocated is a matter for the Ministry of Justice Local authorities should also be aware that prisoners, especially those serving long sentences, may develop eligible needs over time whilst in prison. Local authorities should consider how best to provide information and advice to both individuals and establishments on what can be done to prevent or delay the development of care and support needs Not all local authority areas contain prisons or approved premises. Those that do will assume responsibility for the eligible needs of the people residing in these sites. However, all local authorities will be responsible for continuity of care for offenders with a package of care coming into their area on release from prison. Provision of care and support, where an adult has eligible needs, should be provided in line with chapter 6 of this guidance once these individuals move into the community. Similarly local authorities must support continuity of care for any of their residents moving into custody Local authorities, provider organisations and their staff working in

3 17. Prisons, approved premises and bail accommodation 263 custodial settings should abide by all rules and practices for that establishment, including (but not restricted to) security policies such as restricted items and searches on entry, equality and safeguarding procedures. Definitions Prison: This has the same meaning as the Prison Act 1952, section 53(1). A reference to a prison includes a reference to a young offender institution, secure training centre or secure children s home (see Care Act section 76(11)(a)). A reference to a governor, director or controller of a prison includes a reference to the governor, director or controller of a young offender institution, to the governor, director or monitor of a secure training centre and to the manager of a secure children s home (see Care Act section 76(11)(b)). A reference to a prison officer or prisoner custody officer includes a reference to a prison officer or prisoner custody officer as a young offender institution, to an officer or custody officer at a secure training centre and to a member of staff at a secure children s home (see Care Act section 76(11)(c)) Approved premises: Premises approved as accommodation under section 13 of the Offender Management Act 2007 for the supervision and rehabilitation of offenders, and for people on bail. They are usually supervised hostel-type accommodation National Offender Management Service (NOMS): An executive agency of the Ministry of Justice, its role is to commission and provide offender services in the community and in custody in England and Wales, ensuring best value for money from public resources. NOMS works to protect the public and reduce reoffending by delivering the punishment and orders of the courts and supporting rehabilitation by helping offenders to change their lives Her Majesty s Inspectorate of Prisons/Probation: Her Majesty s Inspectorate of Prisons for England and Wales (HMI Prisons) is an independent inspectorate which reports on conditions for and treatment of those in prison, young offender institutions and immigration detention facilities Her Majesty s Inspectorate of Probation for England and Wales is an independent inspectorate on the effectiveness of work with adults, children and young people who have offended aimed at reducing reoffending and protecting the public Prisons and Probation Ombudsman (PPO): The Prisons and Probation Ombudsman investigates complaints from prisoners, those on probation and those held in immigration removal centres. The Ombudsman also investigates all deaths that occur among prisoners, immigration detainees and the residents of approved premises. Information sharing Local Authorities should ensure the security of information held on people who are in custodial settings, and should develop agreements consistent with policies and procedures of Ministry of Justice and the National Offender Management Service and with relevant legislation which enable appropriate information sharing on individuals, including the sharing of information about risk to the prisoner and others where this is relevant If a local authority is providing care and support for a person in the community and that person is subsequently remanded or sentenced to custody, or bailed to an approved premises, or required to live in

4 264 Care and Support Statutory Guidance approved premises as part of a community sentence, the local authority should share details of the most recent assessment and care and support plan to the relevant custodial setting and the local authority in which it is based so that care and support may continue It is unlikely that local authorities will know when an individual is remanded or sentenced to custody, or when a prisoner is moved to another prison in a new local authority area. Prisons and/or prison health services should inform local authorities when someone they believe has care and support needs arrives at their establishment. Either party may use the mechanism to require cooperation to support working in an individual case, set out in chapter 15. Local authorities may also receive requests for information from managers of custodial settings when an individual who has already received care and support in the community is remanded or sentenced to custody. Local authorities should take all reasonable steps to provide the information requested as soon as practicable after receiving the request. Assessments of need Where a local authority is made aware that an adult in a custodial setting may have care and support needs, they must carry out an assessment as they would for someone in the community. It is likely that there will be complexities for carrying out assessments in custodial settings and consideration should be given to how such assessments will be carried out (for example making appointments and consideration of the number and type of staff required to be involved) The local authority may also combine a needs assessment with any other assessment it is carrying out, or it may carry out assessments jointly with, or on behalf of another body, for example prisoners health assessments Local authorities should consider processes for identifying people in custodial settings who are likely to have or to develop care and support needs. Further guidance will be issued to prison and approved premises managers regarding sharing this information with local authorities and partnership working Local authorities should aim to conduct assessments of those who appear to have care and support needs promptly following receipt of the referral from managers of custodial settings or the prison s health providers. People in a custodial setting have a right to self-refer for an assessment and the managers of the custodial setting, together with the local authority, should consider how to handle self-referrals. The local authority should provide appropriate types of care of and support prior to completion of the assessment where it is clear the person has urgent needs (as per section 19 (3) of the Care Act) If someone in a custodial setting refuses a needs assessment the local authority is not required to carry out the assessment, subject to the same conditions as in the community. That is, this does not apply if: the person lacks the capacity to refuse and the local authority believes that the assessment will be in their best interests; or the person is experiencing, or is at risk of, abuse or neglect (see chapter 6 on assessment) Once a local authority has assessed an individual in custody as needing care and support they must then determine if some or

5 17. Prisons, approved premises and bail accommodation 265 all of these needs meet the eligibility criteria. Where an individual does not meet the eligibility criteria, the local authority must then give him or her written information about: what can be done to meet or reduce needs and what services are available; and what can be done to prevent or delay the development of needs for care and support in the future The threshold for the provision of care and support does not change in custodial settings and will be the same as described in chapter 6. However, the setting in which the care and support will be provided is likely to be different from community or other settings, and this should be taken into account when considering how to meet the need for care and support as part of the care planning process For any needs that are not eligible under the Act, local authorities must provide information and advice to the individual on how those needs can be met, and how they can be prevented from getting worse (as per Section 13 (5) of the Care Act). It is good practice to copy this information to managers of custodial settings, with the person s consent. Prisoners, especially those serving long sentences, may develop eligible needs over time. Local authorities should consider how best to provide information and advice to both individuals and establishments on what can be done to prevent or delay the development of care and support needs The right to a choice of accommodation does not apply to those in a custodial setting except when an individual is preparing for release or resettlement. Release into an approved premises amounts to moving from one custodial setting to another, unless specified otherwise in this guidance. Assessments of a carer s needs It is not the intention of the Care Act that any prisoner, resident of approved premises or staff in prisons or approved premises should take on the role of carer as defined by the Act and should therefore not in general be entitled to a carer s assessment. Separate guidance will be issued to prison and approved premises staff on the role of prisoners and residents of approved premises in providing assistance to others. Charging and assessing financial resources Those in custodial settings will be subject to a financial assessment to determine how much they may pay towards the cost of their care and support, as they would be in the community (see chapter 8). Consideration should be given to the best way of handling financial assessments, taking into account the resources required. In particular local authorities should consider how light touch assessments could be carried out where a person is unlikely to be required to contribute towards the cost of their care and support. Next steps after assessment The local authority should ensure that all relevant partners are involved in care and support planning and take part in joint planning with health partners Where a local authority is required to meet needs it must prepare a care and support plan for the person concerned and involve the individual to decide how to have their needs met. The local authority should also speak to others concerned with the person s health and wellbeing, including

6 266 Care and Support Statutory Guidance prison staff, staff of approved premises and health care staff, to ensure integration of care, and fit with the custodial regime as appropriate, including enabling access to regime services such as libraries and education Whilst every effort should be made to put people in control of their care and for them to be actively involved and influential throughout the planning process (see chapter 10 on care and support planning) local authorities should make it clear to individuals that the custodial regime may limit the range of care options available, and some, such as direct payments do not apply in a custodial setting. However, the plan must contain the elements defined in the Act, including the personal budget. This will ensure that the person is clear of the needs to be met, and the cost attributed to meeting those needs Local authorities should aim to ensure that consent is given so that individual care plans are shared with other providers of custodial and resettlement services including custodial services, probation service providers including Community Rehabilitation Companies, prison healthcare providers and managers of approved premises. For residents of approved premises, the local authority should always liaise with the responsible Offender Manager in probation services For those assessed as being in need of equipment or adaptations to their living accommodation to meet their needs, local authorities should discuss with their partners in prisons, approved premises and health care services where responsibility lies. Where this relates to fixtures and fittings (for instance a grab rail or a ramp), it will usually be for the prison to deliver this. But for specialised and moveable items such as beds and hoists, then it may be the local authority who is responsible Local authorities may commission or arrange for others to provide care and support services, or delegate the function to another party (see chapter 18 on delegation). Local authorities should consider how this fits alongside the commissioning of health and substance misuse services in prison directly commissioned by NHS England and the commissioning of education services by the Skills Funding Agency. If such an arrangement is implemented, local authorities should consider retaining the functions relating to requirements for continuity of care between settings and must retain the functions in relation to charging and safeguarding Care and support plans for those in custodial settings will be subject to the same review processes as all other plans (see chapter 13). Local authorities should also review an individual s care and support plan each time they enter custody from the community, or are released from custody People in custody may experience episodes of hospital care, for example following an incident such as a stroke. Local authorities should co-operate with hospital staff and prison health service providers and commissioners to prevent delays in discharge from hospital and support a timely return to custody. Direct payments Any references to direct payments in the Act or this guidance will not apply in prisons and approved premises. Direct payments may not be made to people in custodial settings.

7 17. Prisons, approved premises and bail accommodation Individuals in bail accommodation and approved premises who have not yet been convicted are entitled to direct payments, as they would have been whilst in their own homes. For more information see the main guidance at chapter 12. Continuity of care and support when an adult moves Individuals in custody with care and support needs must have continuity of care where they are moved to another custodial setting or where they are being released from prison and are moving back in to the community. To ensure that the individual continues to receive care during the move local authorities should follow a similar process to that set out in chapter 20 on continuity of care The individual in custody will be ordinarily resident in the local authority where the custodial setting is located. Where the adult is being released from prison, their ordinary residence will generally be in the authority where they intend to live on a permanent basis, but see paragraphs below There will be circumstances where the process to ensure continuity of care will need to differ. The prison or approved premises to which an individual is allocated is a matter for the Ministry of Justice, and individuals may be moved between different custodial settings. The Governor of the prison or a representative, should inform the local authority in which the prison is located (the first authority) that the adult is to be moved or is being released as soon as practicable. If this is a move to a custodial setting or release into the community in the same authority, then the first authority will remain responsible for meeting the individual s care and support needs. Where the new custodial setting or the community, if being released, is in a different local authority area (second authority), the first authority must inform the second authority of the move once it has been told by the prison The prison, both local authorities and where practicable, the individual, should work together to ensure that the adult s care is continued during the move, bearing in mind this may be a long distance at short notice. Both local authorities must share the relevant information as set out in chapter 20 on continuity of care, including their care and support plan The second authority should assess the individual before they are moved, but this may not always be possible as the authority could be informed of the transfer at short notice. In such circumstances the second authority must continue to meet the care and support needs that the first authority was meeting. It must continue to meet these needs until it has carried out its own assessment The requirements outlined in this guidance only apply to custodial settings in England. (Guidance to cover prisoners who are moved to Scotland, Wales or Northern Ireland is still to be developed) People leaving prison ordinary residence The deeming provisions in section 39 of the Care Act, which provide that in most circumstances a person s ordinary residence is retained where they have their needs met in certain types of accommodation in another local authority area, do not apply to people who are leaving prison. However, local authorities can reasonably follow the approach set out in section 39 for people who are due for release from

8 268 Care and Support Statutory Guidance prison. Therefore, where a person requires a specified type of accommodation (see chapter 19 on ordinary residence) to be arranged to meet their eligible needs on release from prison, local authorities should start from a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence However, determining an offender s ordinary residence on release from prison will not always be straightforward and each case must be considered on an individual basis. For example, it may not be possible for an offender to return to their prior local authority area due to the history of their case and any risks associated with a return to that area. Therefore, any presumption of ordinary residence may be rebutted by a number of factors, including the offender s wishes and intentions about where to live, the length of their sentence and remaining ties with their previous area In situations where an offender is likely to have needs for care and support services on release from prison and their place of ordinary residence is unclear and/ or they express an intention to settle in a new local authority area, the local authority to which they plan to move should take responsibility for carrying out the needs assessment Given the difficulties associated with determining some offenders ordinary residence on release, prisons and the local authority providing care and support in the prison should initiate joint planning for release in advance. Prisons should support assessment and care and support planning for those offenders who will require care and support services on their release from prison. Partnerships and interdependencies It is essential that local arrangements for the delivery of care and support are made in partnership with health and education commissioners and providers within a custodial environment so that those with eligible needs experience integrated services. This should take account of the need for close working with prison staff and regime service (see chapter 15 on integration and cooperation) Consideration should be given to the duty to promote integration contained in section 3 of the Act. This includes health and health related services provided by prisons and providers of probation services. In support of this local authorities should consider the value of regular inter-agency meetings with all those involved in the person s care and support Local authorities should ensure that contracts with providers of care and support cover staff supervision and that staff are supported to deliver high quality services in custodial settings. As part of their responsibilities for shaping and facilitating the market in care and support services, local authorities should work with prisons and approved premises to develop and test contingency plans to cover the event of provider failure. These plans should be aligned with wider prison and local authority business continuity and contingency planning (see chapter 4 on market shaping and commissioning and chapter 5 provider failure).

9 17. Prisons, approved premises and bail accommodation 269 End of life care The provision of care and support for those in custodial settings extends to those who reach the end of life whilst in prison. For this provision of palliative care, some will transfer to a local hospital, hospice or care home or move to an alternative prison where a more suitable environment is available. In these cases, responsibility for care and support will pass to the NHS or new local authority, once the individual arrives at the new location. Approved Premises are not in general a suitable location for the provision of end of life care Prison managers and health care providers should consider informing local authorities when a prisoner receives a terminal diagnosis or when the condition of such a patient deteriorates significantly. Information could be shared with local authorities for the purpose of offender management under s.14 of the Offender Management Act The individual s consent should be obtained where possible Where it is not possible to obtain consent to share the information, managers of custodial settings and health care providers should make an individual assessment of the nature of the information and the requirements of the Data Protection Act Local authorities should work with the prison healthcare provider to ensure that the care and support needs of the prisoner are met throughout the provision of end of life care. NHS Continuing Health Care NHS Continuing Healthcare is a package of ongoing care that is arranged and funded solely by the health service for individuals outside a hospital setting who have complex ongoing healthcare needs, and who have been found to have a primary health need. Such care is provided to people aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. NHS Continuing Healthcare is not dependent on a person s condition or diagnosis, but is based on their specific care needs Section 22 of the Care Act sets out the limits on what a local authority may provide by way of healthcare and so, in effect, sets the boundary between the responsibilities of local authorities for the provision of care and support, and those of the NHS for the provision of health care. In order to support joint working, it is important that all partners involved are clear about their own responsibilities, and how this sits together (see chapter 15 for more detail). NHS England is responsible for commissioning healthcare for prisoners, where necessary this includes NHS continuing healthcare. Safeguarding adults at risk of abuse or neglect Local authorities should follow the safeguarding policies and procedures of custodial settings in their area and work with prison and approved premises staff to ensure that all people in custodial settings are safeguarded Local authorities should consider inviting prison and probation staff to be members of Safeguarding Adult Boards. Separate guidance for prisons and probation will be developed by the National Offender Management Service on safeguarding adults. The inclusion of prison and probation staff on safeguarding adult boards should be agreed with all statutory board members.

10 270 Care and Support Statutory Guidance Transition from children s to adult care and support Local authorities should be aware of children and young people in Young Offender Institutions, Secure Children s Homes, Secure Training Centres or other places of detention as well as children and young people in the youth justice system, who are likely to have eligible needs for care and support as adults, and are approaching their eighteenth birthday. Local authorities should ensure that appropriate arrangements are in place to identify these young people and ensure they receive a transition assessment when appropriate This also applies where an offender moves from the youth custodial estate to the adult custodial estate, which may include a change in the responsible local authority. A request for an assessment can be made on the young person s behalf by the professional responsible for their care in the Young Offenders Institution, Secure Children s Home or Secure Training Centre. Good communication between professionals, institutions and local authorities is essential to prepare for transfer and ensure a smooth transition. Care leavers If a young person is entitled to support and services as a care leaver, this status remains unchanged while in custody and the local authority that looked after the young person retains responsibility for providing leaving care services during his/her time in custody and on release Responsibilities for planning continuing support applies to all care leavers until they reach the age of 21 or, if they are being helped with education or training, to the end of the agreed programme of education or training (which can take them beyond their 25th birthday) Good communication is essential between the local authority responsible for leaving care services and the local authority responsible for providing care and support in custody. Independent advocacy support Adults in custody are entitled to the support of an independent advocate during needs assessments and care and support planning and reviews of plans if they would have significant difficulty in being involved in the process, as in the community, see chapter 7 of this guidance for further details Local authorities should agree with leaders of custodial services how the advocacy scheme will work in their establishments, including the possibility of training some prison staff to act as advocates. Local authorities should notify managers of custodial settings if they identify a need for advocacy where that need is not already being met. Complaints and appeals Local authorities should provide information to those in custodial settings on how to make complaints, and seek redress about provision of care and support services Managers of custodial settings should inform local authorities where an offender wishes to make a complaint as soon as they are made aware. A prisoner may choose to complain or appeal by alternative methods, such as by letter or telephone to the care and support provider. This correspondence should be processed

11 17. Prisons, approved premises and bail accommodation 271 in the same way as all other appeals and complaints once received by local authorities Current complaints provision for care and support is set out in regulations. 141 The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the local authority would be able to make a complaint about that decision and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations The Department of Health intends to develop detailed proposals for a system of reviewing local authority decisions which will be set out in regulations. The detail will specify the scope of decisions which will be covered by the new proposals, including whether decisions made by local authorities on care planning and personal budgets will be eligible for appeal. It is envisaged that the Department will consult on more detailed proposals late in 2014 and that the appeals system would come into force in April 2016, in line with funding reform. Standards and assessments The Prisons and Probation Ombudsman (PPO) conducts investigations in prisons following complaints about prison services, as well as deaths in custody or other significant events. The PPO will commission a relevant body to assist their investigations where it is felt that an aspect of care and support provision has contributed to the event. Local authorities should cooperate with any investigations as required The party commissioned by the PPO will investigate any relevant aspect of care and support provision and report back to the PPO for inclusion in the final report Both prisons and probation services are inspected by Her Majesty s Inspectorate of Prisons and Her Majesty s Inspectorate of Probation. Local authorities should make any relevant assessments and other documents available to inspecting bodies as part of the investigation Local authorities will receive copies of all investigation reports that are relevant to them. It is good practice for local authorities to contribute to the responses and action plans in conjunction with NOMS managers, prison managers and health care providers and commissioners. This could include work to prevent and reduce reoffending, and to prevent harm to others or to the offender Local authorities should co-operate with and attend any inquests that are held following a death in custody, where they are requested to do so or they have relevant information. Links to other sources of information/products which support implementation For information on the provision of social care for children visit For more information on the National Offender Management Service and contact details, visit noms 141 Local Authority Social Services and NHS Complaints Regulations 2009, made under powers in Sections 113 to 115 of the Health and Social Care (Community Health and Standards Act) 2003.

12 272 Care and Support Statutory Guidance For information on the forthcoming changes to the prison estate and to offender supervision on release under Transforming Rehabilitation, visit: downloads/rehab-prog/competition/targetoperating-model-2.pdf To contact the National Offender Management Service about social care, please gsi.gov.uk For information on care leavers in the youth justice system: uk/government/uploads/system/uploads/ attachment_data/file/300342/guidance_ revised_following_consultation.pdf)