Briefing Pack Introduction This briefing provides an outline of the Mental Capacity Act and Deprivation of Liberty Safeguard and gives an overview of its implication on the new NHS. It describes the key challenges for Clinical Commissioning Groups in terms of commissioning for compliance, where to access national data and useful resources to aid implementation. Legislative Framework Mental Capacity Act 2005 and Code of Practice Deprivation of Liberty Safeguards 2007 The Mental Capacity Act 2005 and Code of Practice The Mental Capacity Act is relevant to all patients aged 16 and over and their care and treatment. The Act and Code of Practice, provides a legal framework for acting or making decisions on behalf of individuals who lack mental capacity to make particular decisions for themselves. All professionals have a duty to comply with the Code of Practice. It also provides support and guidance for less formal carers Lack of mental capacity may be a temporary, fluctuating or a permanent condition and relates to the ability to make a specific decision at a specific time. The Act is of central importance in delivering health care. It is the statute that sets out patients rights to make decisions about their care and treatment, balancing this with the right to be protected from harm, and requiring others to act in the patient s best interests where they lack capacity for a particular decision. The Act also provides protections to staff in relation to consent to treatment; use of restriction and restraint; duty of care where a person with capacity refuses care and treatment. The Act introduces rights for individuals to make decisions about future treatment at a point where they may lose mental capacity. The person s wishes and preferences must be taken into account as part of best interest decision where they lack capacity for that decision. A person with capacity may make an Advance Decisions to refuse treatment. Attorneys or deputies may make decisions on the incapacitated person s behalf relating to their personal welfare; property and affairs. As such, it provides an important means of empowering patients to manage their future care for example, patients newly diagnosed with dementia; planning contingencies with people with mental health needs; end of life care planning. The ability of adults to make informed decisions about the way they live their live and the risks they want to take. Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity and there are duties on services to intervene where a person lacks capacity to make a decision about their care, and to act according to their best interest. At two stage test applies to ascertain if a person lacks capacity: Stage one: Does the person have an impairment of the mind or brain (temporary or permanent)? 1
If Yes: Stage two: Is the person able to: understand the decision they need to make and why they need to make it? understand, retain, use and weigh information relevant to the decision? understand the consequences of making, or not making, this decision? communicate their decision by any means (i.e. speech, sign language)? failure on one point will determine lack of capacity. The Mental Capacity Act set up the Independent Mental Capacity Advocacy (IMCA) service to help vulnerable people who lack capacity and are facing important decisions, including serious healthcare treatment decisions, with no family or friends apart from paid carers to be consulted as part of making a best interests decision. The Act is based on five principles: To assume a person has capacity to make decisions concerning their life and treatment unless proved otherwise Not to treat people as incapable of making a decision unless you have tried all you can to help them Not to treat someone as incapable of making a decision because their decision may seem unwise Not to do things or take decisions for people without capacity unless it is in their best interests Before doing something to someone or making a decision on their behalf, you must consider whether you could achieve the outcome in a less restrictive way. Deprivation of Liberty Safeguards April 2009 Deprivation of Liberty The Deprivation of Liberty Safeguard (DoLS) was introduced as amendments to the Mental Capacity Act 2005 in the Mental Health Act 2007(1) and came into operation on 1 st April 2009. The Mental Capacity Act (section 6(4)) permits restraint and restrictions to be used where it is necessary and proportionate and to prevent harm to the person who lacks capacity. The Deprivation of Liberty Safeguard is an amendment to the Mental Capacity Act 2005 and outlines where extra safeguards are needed if the restrictions and restraint are so extensive as to deprive the person of their liberty. These safeguards do not apply to patients detained under the Mental Health Act 1983. The legislation represented Government s response to the European Court of Human Rights ruling in the HL case (sometimes known as Bournewood ). This related to a breach of Article 5 of the Convention the right to liberty and security. The purpose of the Safeguards is to: Prevent arbitrary decisions that deprive vulnerable people of their liberty To protect service users and if they need to be deprived of their liberty, give them representation, rights of appeal and for the authorisation to be monitored and reviewed. A major part of preventing DoL is minimizing any restraint. Restraint must be appropriate, proportionate and in the patient s best interests. 2
The Deprivation of Liberty Safeguards can only be used for people who have been assessed as lacking the capacity to consent and if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can be asked if a person can be deprived of their liberty. Care homes or hospitals must ask the Local Authority if they can deprive a person of their liberty. This is called requesting a standard authorisation. The Local Authority must then carry out six, legally prescribed assessments to determine whether an authorisation can be given: Assessment must establish eligibility criteria and best interest for the patient. It must be proportionate and there must be no other viable alternative 6 areas of assessment Assessor can attach conditions to the authorisation including time period of authorisation Maximum period of authorisation is 12mths Person has right of appeal and a representative appointed Where an assessment identifies the person is being deprived of their liberty but it is not in their best interests, revised care must immediately be put in place. Consideration should also be given about whether a referral under local Safeguarding Adults procedures is required. Commissioning challenges In securing services, CCGs should ensure safeguarding adults and Mental Capacity Act/Deprivation of Liberty Safeguards requirements are clearly set out within the tender, services specifications and quality schedule. CCGs must ensure that commissioned services comply with the provisions of the Mental Capacity Act and Deprivation of Liberty Safeguards and that use of restriction and restraint is the least restrictive to meet the needs of the patient and that there is no unlawful deprivation of liberty. Commissioning for compliance: contracts and contract monitoring with acute hospitals, care homes; domiciliary care; providers of individual packages of care have requirements relating to safeguarding adults; Mental Capacity Act and Deprivation of Liberty Safeguards are clearly specified. This should include: Require the provider to undertake a MCA and DOLs audit Stipulate that all staff need annual MCA training Request the Trusts to have a MCA lead Ask Trusts to report Court of Protection cases to CCGs or Safeguarding Boards Providing leadership for safeguarding adults and the Mental Capacity Act across the local Health economy, for example, development networks and leading local strategies. In partnership ensure that there is appropriate capacity in the system of professionals qualified to carry out best interest assessments and support the training and education of health professionals and best interest assessors to deliver effective safe quality patient services. 3
Address regional and local variability in DOLs and IMCA referral. In partnership with CQC, National Trust Development Agency undertake inspections and audits to provide scrutiny and assurance of provider s safeguarding arrangements and compliance with Mental Capacity Act and Deprivation of Liberty Safeguards The CCG will hold accountability for all authorisations granted by the former Primary Care Trust that ceased before April 2013. Any challenge made in regard to these historic authorisations will be made to the CCG Delivery challenges Staff providing care and treatment to vulnerable people in hospitals and care/nursing homes should be aware if they are the subject of a deprivation of liberty safeguards authorisation Staff should be aware of their right to request an assessment if they feel a vulnerable person is being deprived of their liberty in a hospital or care/nursing home without the appropriate authorisation being in place Staffs employed within services have the required levels of competence in relation to safeguarding adults; Mental Capacity Act and Deprivation of Liberty Safeguards. Intelligence: data sources; what the data indicates 70% of all social care clients lack capacity in some aspects of their decision making and need to be supported in the context of the Mental Capacity Act. This applies to some 80% of those in care homes. The Health and Social Care Information Centre collects Indicators on how well the MCA is being used including Number of referrals to IMCAs (statutory advocates) Number of referrals for DOLS Number of referrals to IMCAs During 2011/12 there was a 9% increase in referrals from the previous year. The numbers have more than doubled in five years. However there are still wide disparities in the rate of IMCA instructions across different local areas which cannot wholly be explained by population differences. There were a total of 11,899 eligible instructions for the IMCA service in England. The latest data on IMCA referrals shows that these are going down so fewer people receive the safeguards of having an IMCA. The largest decrease of referrals to IMCAs is within safeguarding. Only 1.3% of people who receive safeguarding help from the local authority get an IMCA. 4
Increases/ Decreases in decision types Accommodation 4,916 (Increase of 6%) Serious medical treatment 1,743 (Increase of 5%) Safeguarding 1,533 (Decrease of 2%) Care reviews 1,032 (Increase of 34%) Deprivation of Liberty Safeguards 1,979 (Increase of 18%) Number of referrals for DOLS Nearly 12,000 Deprivation of Liberty Safeguards (DoLS) applications were made in 2012/13 (11,890). This is a four per cent increase on 2011/12 (11,380) - a slower rate of increase than in previous years. The 2012/13 figure represents a 66 per cent increase on 2009/10 (7,160), the first year of DoLS. 5
Although application numbers continued to increase, the rate of increase was smaller than in previous years. This pattern of rising applications is contrary to predictions that applications would fall at a constant rate between 2009/10 and 2015/16 More than half (55% or 6,546) of all applications for deprivation of liberty under DoLS completed in 2012/13 had an authorisation granted. Where authorisations were not granted in 2012/13, this was usually because the supervisory body considered that the best interests assessment had not been met (80% of applications where authorisation was not granted). The majority (71%) of applications in 2012/13 were completed on behalf of people with mental health conditions, with dementia accounting for more than half (54%) of all applications made. This is likely to be related to the age profile of people who are subject to application for deprivation of liberty under DoLS (in 2012/13, 27% of applications related to people who were aged 85 and over). Over half (55.8%) of all authorisations granted in 2012/13 were for a duration of 0 to 90 days; relatively few authorisations (7%) were granted for 365 days or more. LAs granted a higher proportion of authorisations with duration of more than 180 days (27%) than PCTs (4%). This may reflect differences between the care needs of hospital patients and care home residents. Across England as a whole, 28.3 applications per 100,000 people aged 18 and over were made in 2012/13. Application rates rose sharply with age, ranging from 9.6 per 100,000 people for 18-64 year-olds to 265.3 per 100,000 people for those aged 85 and over. Substantial variations by region and ethnic group were observed, in part reflecting differences in age structure by region and by ethnic group. NHS England priorities NHS England has been given a Mandate from Government to improve outcomes for patients. NHS England s business plan sets out Key Deliverables, intended to help deliver the Mandate. The deliverables relevant to this objective are: 6
1. We will ensure delivery of all of the actions set out in the Winterbourne View concordat in 2013-4 2. We will work to ensure that the views of vulnerable people, their families and carers are routinely used in the planning and delivery of services. 3. We will support CCGs to improve outcomes across the full range of the NHS Outcomes Framework and act proactively, with our support when appropriate, should they identify or anticipate a quality or safety issue in a provider. That includes wider system responses, such as acting on the Winterbourne View and Francis reports. 4. Ensure that there is a capable system of safeguarding that is resilient to the transition and linked to quality assurance 5. Ensure that CCGs work with local authorities to ensure that vulnerable people, particularly those with learning disabilities and autism, receive safe, appropriate, high quality care NHS Outcomes Framework While there is not one specific outcome in the Framework for Mental Capacity, there is a common purpose between health and social care in safeguarding adults at risk and this is collated by the Local Authority as the statutory lead organisation in safeguarding. At the same time the NHS has to assure itself that people who may lack capacity receive care that is in their best interest. What outcomes do we want for patients who lack capacity? NHS Outcome Framework 2013/14 Adult Social Care Outcome Framework 2013/14 Public Health Safeguarding adults whose circumstances make them vulnerable and protecting them from avoidable harm The proportion of people who use services feel safe The proportion of people who use services who say that those services have made them feel safe and secure Effective Safeguarding Services 3 NHS Presentation to [XXXX Company] [Type Date] Mental Capacity Act underpins all domain to ensure people who lack capacity receive person centred care that is in their best interest. CCG authorisation and assurance CCGs have had to demonstrate that they were able to meet the safeguarding and Mental Capacity Act requirements set out in authorisation documentation, such as being able to evidence that appropriate systems are in place for discharging their responsibilities in respect of safeguarding, including: A clear line of accountability for safeguarding, properly reflected in the CCG governance arrangements 7
Plans to train their staff in recognising and reporting safeguarding issues Having a safeguarding adults lead and a lead for the Mental Capacity Act, supported by the relevant policies and training. Demonstrate their designated clinical experts are embedded in the clinical decision making of the organisation, have correct JD & Spec, time to do role and are performance managed appropriately. Role of NHSE NHS England sits on a newly-set up National Steering Group on MCA, with the Department of Health, Ministry of Justice, other health Arm s length Bodies, social care and medical professional bodies and employers. The Mental Health Focus and Delivery Group is a task to finish group to improve MCA awareness in the NHS Direct Commissioning NHS England has the same statutory duties as CCGs for its directly commissioned services: It will need to agree with Local Safeguarding Children Board / Safeguarding Adult Board Chairs and Directors of Children s Services and Adult Social Services how best to engage with local assurance and accountability processes. Via its area teams, it is responsible for the co-coordinating and funding of safeguarding training for GPs and potentially other primary care professionals. Safeguarding Structure in NHS England Chief Nursing Officer Chief Nursing Officer (CNO) is the lead Director for safeguarding, including Mental Capacity Act and Deprivation of Liberty safeguard and will lead work that defines improvement in safeguarding practice. Regional and Area teams will each have a Director of Nursing who is responsible for providing assurance on the safeguarding. The leadership of the CNO ensures: The Board meets its safeguarding duties in relation to the services that it directly commissions (eg primary care, specialised services) The CNO acts as the policy lead for NHS safeguarding, including leading and defining improvement in safeguarding practice and outcomes The CNO leads, in conjunction with regional Directors of Nursing, assurance and peer review processes for both CCGs and directly commissioned services NHS England provides specialist safeguarding advice to the NHS Within the CNO s corporate team, the Director of Nursing (Commissioning and Health Improvement) will have a Clinical Lead for Safeguarding. This post holder will lead on behalf of the CNO: 8
Implementation of the safeguarding assurance framework across NHS England and CCGs Provision of leadership support to safeguarding professionals including working with Health Education England on education and training of both the general and the specialist workforce Work across health and social care to improve standards of practice, especially in commissioning. Area Teams Within each area team, the Director of Nursing has the lead responsibility for safeguarding for both children and adults, and acts as the main conduit of advice and support to area team colleagues and the wider system. They will each establish local Safeguarding Forums. The role of these Safeguarding Forums includes: Provision of supervision and support to designated and specialist professionals Provision of specialist advice and expertise to CCGs and area teams Driving improvement in safeguarding practice Underpinning system accountability through peer review based assurance, that will be developed in line with the overall NHS England approach to quality improvement Ensuring succession planning and the commissioning of appropriate education and development for designated and specialist professionals, through engagement with HEE. Role of Strategic Clinical Networks The Safeguards (MCA and DOLs) are most likely to affect people with dementia, a mental illness, a learning disability or an acquired brain injury. Strategic Clinical Networks need to ensure that MCA and DOLs principles form part of their strategic role. Strategic Clinical Networks are ideally placed to ensure that MCA and DOLs forms part of their sphere of influence. Resources MCA Resources (audit, e-learning etc.) available from Social Care Institute for Excellence http://www.scie.org.uk/publications/mca/resources/list.asp The Care Quality Commission s Second Report on the Implementation and Use of the Safeguards (CQC London March 2012) Deprivation of liberty safeguards Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice Ministry of Justice 2008 http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digital asset/dh_087309.pdf 9
Making decisions - A guide for people who work in health and social care Helping people who are unable to make some decisions for themselves Ministry of Justice 2009 http://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/opg-603-0409.pdf Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England): Annual Report, 2012/13 https://catalogue.ic.nhs.uk/publications/mental-health/legislation/mc-a-2005-dep-lib-saf-ass-eng-2012-13/m-c-a-2005-dep-lib-saf-ass-eng-2012-13-rep.pdf The Fifth Year of the Independent Mental Capacity Advocacy (IMCA) Service - 2011 /2012 http://www.mentalhealthlaw.co.uk/images/imca_service_fifth_annual_report_2011-12.pdf SCIE report 62: Managing the transfer of responsibilities under the Deprivation of Liberty Safeguards 2012 http://www.scie.org.uk/publications/reports/report62.asp 10