Birmingham CrossCity Clinical Commissioning Group Deprivation of Liberty Safeguards (DoLS) Policy: Supervisory body Functions Policy Number Purpose of document To ensure that that the rights of patients who lack capacity and who are, or who may be, deprived of their liberty within provider services, are upheld. Target Audience All CCG staff, Independent Contractors and all providers for services commissioned by the CCG Deadlines This is an interim document - revised October 2012 Approved by Excellence in Clinical Care Committee October 2012 CCG Governing Body for information October 2012 Version 2012 v1 Policy Author Safeguarding Team Where Approved Excellence in Clinical Care Committee Date of Approval As an interim Policy 23/10/12 Lead Officer Jenny Belza Head of Quality and Patient Safety Date of original Equalities Impact Assessment 15/09/11 Review Frequency Annual Next Review Date April 2013 for this interim policy History: The following Committees, groups or individuals have been consulted in the development of this policy: Name: Date: Outcome: September Minor amendments only 2011 Members of Birmingham wide DoLS group for Health Associate Director of Nursing SHA Director of Nursing B/ham & Solihull Quality and Safety Committee Birmingham CrossCity CCG Excellence in Clinical Care Committee 08/11/11 23/10/12 Minor amendments Reviewed and agreed for adoption as an interim policy
Contents Section Page 1 Introduction 3 2 Defining Deprivation of Liberty 3 3 Aims of the policy 3 4 CCG Objectives 4 5 Scope 4 6 Legislation and Guidance 5 7 Supporting Policies and Documents 5 8 The DoLS Process 5 9 Identifying the Supervisory Body 6 10 Responsibilities of the Supervisory Body 6 11 The Managing Authority 7 12 Unauthorised Deprivation of Liberty 7 13 The Court of Protection 8 14 Governance 9 Appendices A Basic Principles of the Mental Capacity Act 2005 10 B Deprivation of Liberty Process 11 C Birmingham & Solihull Safeguarding Adults/MCA & DoLS Group for Health Terms of Reference 12 Glossary of Acronyms BIA Best Interest Assessors BSAB Birmingham Safeguarding Adults Board CSU Commissioning Support Unit DoLS - Deprivation of Liberty Safeguards ECHR European Convention on Human Rights IMCA Independent Mental Capacity Advocates MCA Mental Capacity Act RPR Relevant Person s Representatives 2
1.0 Introduction 1.1 The Mental Capacity Act 2005 (MCA) is the legal framework for acting and making decisions on behalf of individuals who lack the capacity to make specific decisions for themselves. (see appendix A) Restrictions on the liberty of a person without capacity are permissible under the MCA, but deprivation of liberty is not, unless certain safeguards are in place. 1.2 The Deprivation of Liberty Safeguards (DoLS) are an amendment to the MCA, introduced to provide a statutory framework for the Deprivation of Liberty of people in care homes or hospitals, specifically to prevent breaches of the European Convention on Human Rights 1998 (ECHR) and to prevent authorities taking arbitrary decisions on this matter. 1.3 DoLS applies when the care or treatment of an individual without capacity, residing in hospital or a care home, can only be delivered in circumstances which represent more than restriction of their liberty but instead amounts to a deprivation of their liberty. 1.4 The safeguards protect the rights of vulnerable individuals by making it the responsibility of a Managing Authority (the hospital or care home) to seek authorisation from a Supervisory Body (the PCT/CCG or local authority) in order to lawfully deprive a person without capacity of their liberty. 1.5 Until the 31 st March 2013, the PCTs are supervisory bodies for the DoLS process. From the 1 st April 2013, local authorities will be the only Supervisory Bodies, authorising deprivations of liberty outside the Court of Protection. Up and until 31 st March 2013, PCTs/CCGs will have a statutory responsibility to ensure that their duties are discharged in accordance with relevant legislation, Department of Health guidance, the DoLS code of practice, and emerging case law. All parties within the CCG have a duty to report to the CCG Excellence in Clinical Care Committee and the CCG Governing Body via the Safeguarding Adults team. 1.6 The Clinical Commissioning Group (CCG) and the Local Authority have overall responsible and are accountable for this policy and safeguarding of its population. The CCG may wish to commission a complaints service from a Commissioning Support Unit (CSU) where the CCG would contract with the CSU to act as the responsible Commissioner on its behalf to meet the requirements of this policy and procedure. 2.0 Defining Deprivation of Liberty 2.1 There is no formal definition as to what constitutes a deprivation of liberty. Each case will need to be considered on its own merits and circumstances. This policy therefore does not seek to give detailed guidance on the matter, but instead directs to the DoLS code of practice, to the literature produced by the Department of Health, and to the body of decisions made by the court of protection. 3.0 Aims of the policy 3.1 To ensure that that the rights of patients who lack capacity and who are, or who may be, deprived of their liberty within provider services, are upheld. 3
3.2 To ensure that PCTS (CCGs) meet statutory responsibilities as supervisory bodies within the DoLS process 3.3 To ensure that there is consistency in approach for the application of DoLS safeguards throughout the CCG and its managing authorities, in line with national guidance and interpretation. 4.0 CCG Objectives 4.1 To have in place written procedural guidelines for dealing with all requests for DoLS applications, as part of the authorisation decision making process. 4.2 To maintain an up to date list of section 12 doctors, Best Interests Assessors (BIAs) and Independent Mental Capacity Advocates (IMCAs) 4.3 To commission DoLS assessments within statutory timescales and to maintain a full record of all assessments commissioned with respect to the process. 4.4 To ensure that assessors used within the DoLS process are sufficiently skilled and trained in their work, and that assessments are robust and of good quality. 4.5 To provide written authorisation for any Deprivation of Liberty, and a written record of any requests that have not been authorised. 4.6 To ensure that for each Deprivation of Liberty authorisation the circumstances of the authorisation are monitored and kept under ongoing review. 4.7 To maintain accurate statistical data and supply this to the Department of Health on a quarterly basis 4.8 To ensure all CCG employees involved in delivering statutory responsibilities within the DoLS process have training and support sufficient to allow them to carry out their duties in an informed manner, including updates to case law and practice as required. 4.9 To maintain ongoing links between relevant leads in supervisory body, the managing authorities, IMCA services and Birmingham Safeguarding Adults Board (BSAB) 4.10 To have assurance, through contract monitoring and governance structures, that commissioned providers delivering in-patient services have robust policies and procedures in place with regard to the Deprivation of Liberty Safeguards, and undertake relevant training as required. 5.0 Scope 5.1 The Policy applies directly to persons meeting all of the following criteria: Aged over 18. Having a mental disorder Lacking capacity to consent to arrangements for their care and treatment. 4
Receiving care or treatment in a hospital or registered in-patient care setting Receiving care or treatment in circumstances which amount to a deprivation of liberty. The policy does not apply to people living in their own homes. 5.2 The policy applies to all CCG staff, independent contractors and staff employed in commissioned provider services whose work brings them into contact with vulnerable adults with impaired capacity in in-patient settings. 5.3 The policy also relates directly to Independent Mental Capacity Advocates (IMCAs), Relevant Person s Representatives (RPRs), Best Interest Assessors (BIAs) and Section 12 doctors involved in the DoLS process. 5.4 The policy does not replace the Deprivation of Liberty Safeguards Code of Practice, the Mental Capacity Act Code of Practice, or any existing policies on the use of restraint, consent to treatment, mental capacity or safeguarding in use within the CCG or commissioned services. Staff should refer to existing guidance, policies & procedures and use them in conjunction with this document 6.0 Legislation and Guidance 6.1 Relevant legislation and guidance includes the following (not an exhaustive list): Mental Capacity Act 2005 Mental Health Act 2003 Human Rights Act 1998 European Convention on Human Rights (ECHR), effective 3 rd September 1953 Care Standards Act 2003 7.0 Supporting Policies and Documents 7.1 This policy and procedure should be read in conjunction with the following organisational policies Safeguarding Consent to Treatment Mental Capacity Privacy Dignity and Respect 8.0 The DoLS process 8.1 The flowchart in appendix B gives details on the DoLS process. The code of practice should be referred to whenever an application is made, and standard forms for use in the process are available on the DoH website. This policy will not restate the information given in the code of practice and various DoH guidance leaflets, but in very simple terms the DoLS process is as follows: 5
8.2 The managing authority identifies a deprivation of liberty and applies in writing to the supervisory body in order to authorise the deprivation of liberty of the individual concerned. 8.3 The supervisory body commissions six assessments from independent assessors: Age, Mental Health, Eligibility, Mental Capacity, No Refusals, Best Interests. 8.4 The supervisory body will also commission a report from an IMCA if the patient has no suitable person with which to consult as part of the assessment process 8.5 If the results of all of the assessments are positive, the deprivation of liberty will be authorised in writing by the supervisory body for a set period of time. If any one of the assessments fails the deprivation will not be authorised. 8.6 A Relevant Persons Representative is appointed by the supervisory body whenever an authorisation is granted. 9.0 Identifying the Supervisory Body 9.1 Where the deprivation of liberty safeguards are applied to a person in a hospital situated in England, the supervisory body will be: If the patient is registered on the list of NHS patients of a General Practitioner practice, the PCT/ CCG that holds the contract with that GP practice. If a patient is not registered with a GP practice, the PCT/ CCG in whose geographic area the patient is usually resident. If a patient is unable to give an address, the geographical host PCT/ CCG where the unit providing the treatment is located. 9.2 In a hospital in Wales the responsibility for DoLS lies with the Welsh Ministers or LHB. In such cases the PCT/ CCG only has a responsibility as supervisory body if it commissions the service directly. 9.3 Where DoLS applies to a person in a care home (including care homes with nursing), the supervisory body will be the local authority for the area in which the person is normally resident. The CCG therefore has no responsibility as supervisory body in such cases. 9.4 The CCG Nurses in the relevant Safeguarding team will be the named authorisers for all deprivation of liberty requests where the PCT/ CCG has supervisory body responsibility until the dissolution of the PCTs on the 31 st March 2013. Thereafter, local authorities will be the only Supervisory body. 10.0 Responsibilities of the Supervisory Body 10.1 The PCT/CCG within the CCG is supervisory body and is responsible for overseeing the application of the DoLS process. The process will include, where not already stated in the objectives of this policy, the following: 10.2 Considering carefully, in the first instance, whether requests for authorisation are appropriate and should be pursued, and seeking any further information that may be required from the managing authority in order to reach this decision. 6
10.3 Working actively with managing authorities to develop understanding of least restrictive practice, thereby preventing deprivation of liberty wherever possible. 10.4 Actively monitoring to ensure that all commissioned assessments are robust, thorough, and take due account of recent case law, and where necessary taking steps to address any inadequacies in the assessments. 10.5 Ensuring proper scrutiny of the DoLS process and of the individual circumstances around each deprivation of liberty, with independence and a degree of care that is appropriate to the seriousness of the decision 10.6 Ensuring that speedy review of a deprivation of liberty authorisation is carried out where circumstances indicate this to be appropriate, including instances where relevant parties have formally requested a review and there appear to be legitimate grounds for doing so. 10.7 Seeking to resolve any differences of opinion between the parties involved in the DoLS process 10.8 Appointing Relevant Person s Representative in writing, making them aware of their responsibilities and offering the support of IMCA to this person if required. 10.9 Referring matters to the Court of Protection where disputes cannot be resolved through negotiation. 11.0 The Managing Authority 11.1 This policy does not cover procedures the Managing Authorities should take prior to the submission of a request for a standard authorisation to the CCG. Such procedures will need to be produced internally by each Managing Authority. As commissioning body the CCG will require all provider services to demonstrate that a robust policy framework and training plan is in place 11.2 There is an expectation that managing authorities should use DoLS as a last resort following the implementation of lesser restrictions allowable under the MCA. 11.3 Managing Authorities should maintain accurate records of all aspects of the DoLs process including clear mental capacity assessments and a record of any restrictions put in place in the best interests of the person involved. 11.4 The CCG will work with managing authorities and commissioned services in order to develop a shared understanding of the DoLS process, to develop best practice in this area, and to ensure an informed application of the wider MCA in cases where restrictions on liberty may be apparent. 12.0 Unauthorised Deprivation of Liberty 12.1 In cases where a best interests assessor has identified that deprivation of liberty is occurring but has concluded that this is not in the relevant person s best interests, the 7
CCG will immediately inform the managing authority and instruct them to review the care plan, in order to ensure that an unlawful deprivation of liberty does not continue. 12.2 The CCG as commissioner of services has a responsibility to purchase and design care packages in a way that ensures providers can comply with the outcome of DoLS assessments when an authorisation is refused. 12.3 Providers and managing authorities have a responsibility to work to least restrictive practice wherever possible, and to ensure that every feasible alternative to deprivation is explored. 12.4 If the CCG has any doubts as to whether the matter is being satisfactorily resolved by the managing authority within appropriately urgent timescales, the matter will be escalated, and CQC informed if necessary. 12.5 In cases where the relevant person is assessed to have capacity the managing authority will need to consider, if necessary in conjunction with the CCG as commissioner, how best to support that person to make their own decisions as a matter of urgency. 12.6 Where an interested party believes deprivation of liberty is occurring at an in-patient unit, and makes the CCG aware of this, the CCG will assess the circumstances of the case and will discuss with all relevant parties. If necessary the CCG will arrange for a preliminary assessment of circumstances to take place, and depending of the outcome of this assessment, may then commission the full DoLS process. 13.0 The Court of Protection 13.1 In the event of dispute the Court of Protection is the final arbiter on decisions around mental capacity and the lawfulness of any deprivation of liberty. 13.2 Wherever possible the CCG will seek to resolve differences through negotiation and discussion with relevant parties. The aim should be to limit applications to the Court of Protection to complex or contentious cases that genuinely need to be referred to the court. 13.3 The CCG will ensure that all parties are aware of their right to take their concerns to the court if concerns cannot be resolved in timely fashion in this manner. 13.4 An individual party or organisation will not necessarily have automatic right of access to the court but will often in the first instance have to seek permission from the court to make an application. There will usually be a fee for applications to the court. Details of fees charged by the court and circumstances in which fees may be waived or remitted, details of who can apply to the court directly, and guidance how to make an application to the court is available from www.direct.gov.uk 13.5 Case law on DOLS is evolving rapidly. The CCG will take steps to ensure that employees having responsibilities in delivering the DoLS process are kept up to date on this matter, and will seek legal advice on matters as appropriate. 8
14.0 Governance 14.1 Monitoring of DoLs data will be carried out by CCG Safeguarding Adults team. 14.2 All commissioned providers will be expected to collate their own figures on DoLs applications and training data which is then reported to the CCG on a quarterly basis. 14.3 The CCG Safeguarding Adults team will make contact on a regular basis with Safeguarding leads for its commissioned providers for governance purposes. 14.4 The CCG Safeguarding Adults team will chair a monthly DoLs/Safeguarding CCG wide group to facilitate the sharing of good practice and to promote consistency in approach. This group will in turn feed in to the CCG Excellence in Clinical Care Committee. See Appendix C for terms of reference. 14.5 The CCG Safeguarding Adults team will report to the CCG Excellence in Clinical Care Committee and the CCG Governing body on a half yearly minimum basis, and will also produce an annual safeguarding report, incorporating information on DoLS. 14.6 CCG Safeguarding Adults team will attend the BSAB DoLS sub-group and report data to them on a regular basis. 14.7 The CCG and commissioned providers will separately supply such information as is required by the Care Quality Commission with respect to the implementation of the DoLS process. 9
Appendix A Basic Principles of the Mental Capacity Act 2005 The 5 basic principles of the mental Capacity Act are as follows: (1)A person must be assumed to have capacity unless it is established that he lacks capacity. (2)A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (3)A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (4)An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (5)Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action. The Mental Capacity Act can be downloaded in full from: www.legislation.gov.uk The MCA Code of practice can be downloaded from: www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/ DH_085476 10
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Appendix C BIRMINGHAM AND SOLIHULL SAFEGUARDING ADULTS/ MCA & DOLS GROUP FOR HEALTH TERMS OF REFERENCE The Birmingham and Solihull Safeguarding Adults/ MCA/ DoLs group for health is a formal group chaired by Birmingham and Solihull Cluster/ Clinical Commissioning Groups Safeguarding vulnerable adult s team in order to share information and promote quality and consistency in safeguarding/dols practice across Birmingham & Solihull. This group has an advisory, monitoring and assurance function and will feed into the governance processes for both the Birmingham and Solihull Cluster and CCGs Governing Bodies via the Joint Commissioning & Safeguarding Adults at Risk Scrutiny Group, with exception reporting to the CCG s Excellence in Clinical Care Committee / Governing Body. 1. Accountability The group is accountable to the Joint Commissioning & Safeguarding Adults at Risk Group. 1.1 Membership will be agreed by the chair. Members will be safeguarding operational leads from the CCGs/ CSU Safeguarding Adults team and safeguarding operational leads from main commissioned health providers across the Cluster. 1.2 Only members of the group have the right to attend meetings. However other individuals, including external advisors may be invited to attend for all or part of any meeting as and when appropriate. 1.3 Joe Martin (Safeguarding Lead Nurse Birmingham and Solihull Cluster/ CCGs) will chair the meetings. In the absence of the chair another member of the Birmingham and Solihull CCGs safeguarding adults team will chair. 2. Secretary 2.1 The Safeguarding Unit team administration assistant shall provide support to the chairman and group members. 2.2 The secretary s duties will include: 2.2.1 Agreement of the agenda with the chairman, collation and circulation of papers. 2.2.2 Minuting the proceedings and resolutions of all meetings of the group including recording the names of those present. Minutes shall be circulated promptly to all members of the group 2.2.3 Keeping a record of matters arising and issues to be carried forward. 12
3. Quorum A quorum shall be no less than one third of the group membership, which must include either the chair or another member of the CCG/ Cluster Safeguarding adult s team. 4. Frequency of meetings The group shall meet monthly. 5. Notice of meetings 5.1 Meetings of the group shall be requested by the secretary of the group at the request of the chair. 5.2 Unless otherwise agreed, notice of each meeting confirming the venue, time and date, together with an agenda of items to be discussed shall be forwarded to each member of the group and any other person required to attend no later than 5 working days before the date of the meeting. Supporting papers shall be sent to group members and to other attendees as appropriate at the same time. 6. Aims of the Group 6.1 With respect to DoLs: Monitor the effective application of the DoL safeguards across the cluster/ CCGs Promote good communication between managing and supervisory bodies Share local case issues and local operational issues Promote peer support and peer learning Provide updates from national case law Promote consistency in practice in health settings across Birmingham and Solihull Highlight any area of risk Provide a health perspective to feed into BSAB DoLs Sub-group 6.2 With Respect to Safeguarding: Monitor and provide assurance about the effective delivery of safeguarding across health services within Birmingham and Solihull. Promote effective multi-agency working and information exchange Share best practice 13
Develop consistency in the reporting and data collection of safeguarding issues within health services Share and identify safeguarding trends and issues Highlight any areas of risk Provide a health perspective to feed into BSAB Operational Sub-group Deliver overview of safeguarding systems within health services to Clinical Commissioning Groups as handover of responsibilities progresses. 7. Reporting Responsibilities Information from the Birmingham and Solihull Safeguarding Adults/DoLS group for health will be used to inform the Safeguarding Adults team report to the Joint Commissioning & Safeguarding Adults at Risk Scrutiny, CCG Governing Bodies assurance Committee s and until the dissolution of the constituted PCTs, the Cluster Quality and Safety Committee, Cluster Board. Relationships with other Committees or Groups Issues/ Concerns and good practice raised at the group will be fed into the BSAB DoLS Sub-Group, BSAB operational Sub-Group, other BSAB sub-groups as required, and the main BSAB board as appropriate. Review The Birmingham and Solihull Safeguarding Adults/DoLS group for health will review and evaluate its terms of reference, performance and attendance in February 2013 or sooner as the NHS restructures. 14