Protocol for The use of Independent Best Interests Assessors for Deprivation of Liberty Safeguards Assessments in care homes and hospitals Report Author: Lorraine Currie Revised April 2013 Review Date: March 2014
Contents 1.... 2 2.... 2 3.... 3 4.... 3 5. l... 4 6.... 4 7.... 5 8.... 5 9.... 6 10....Error! Bookmark not defined. 11....Error! Bookmark not defined. 12. Error! Bookmark not defined. 13....Error! Bookmark not defined. 14....Error! Bookmark not defined. 15....Error! Bookmark not defined. 16....Error! Bookmark not defined. 17....Error! Bookmark not defined. 18....Error! Bookmark not defined. Appendix A...Error! Bookmark not defined. SCHEDULE 1... 10 1. Acknowledgements This protocol has been developed in response to demand from the sector and with contributions from the ADASS task force and DoLS leads across the Country. It was made necessary by the workforce crisis generated following the Supreme Court judgement in March 2014. 2. Parties to the Protocol This protocol was ratified by the Association of Directors of Adult Social Services (ADASS) on XXXX and is intended for adoption by all Councils with Adult Social Services Responsibilities in England. The protocol is also available for use by Local Authorities in Wales. 2
3. Background The Mental Capacity Act 2005 (MCA) was introduced in 2007. The Mental Health Act 2007, which received Royal Assent in July 2007, included an amendment to the MCA to introduce additional Deprivation of Liberty Safeguards from 1 st April 2009. The Deprivation of Liberty Safeguards provide additional protection for the most vulnerable people living in residential homes, nursing homes or hospital environments. There is a requirement, in law that care will always be provided in a way which is consistent with the human rights of people lacking capacity who are not otherwise protected or safeguarded through the use of the Mental Health Act or Court of Protection powers. Local Authorities have primary responsibility as the Supervisory Body under the DoL Safeguards. In operational terms this means that Local Authorities receive requests from Managing Authorities (residential/nursing homes and hospitals) and are required to organise, complete and respond to requests for authorisations within the mandated deadlines under the DoL regulations. The Supreme Court issued a decision in March 2014 which changed the face of Deprivation of Liberty Safeguards (DoLS) and had significant implications for local authorities as supervisory bodies. They gave clarity to the meaning of deprivation of liberty (which they described as the acid test) which is that a person is deprived of liberty if They are under continuous (complete) supervision and control and not free to leave. Since the judgement the implications have been enormous for Local Authorities as supervisory bodies, applications have increased by eight to ten fold and most Councils have been unable to meet the demand in a timely way. This has led to an inadequate number of Best Interests Assessors (BIA s) in the workforce to meet the demand. Local Councils have responded by commissioning more training and providing other short term solutions but inevitably often have to rely on Independent assessors. 4. Definitions This protocol will apply the following definitions. Supervisory Body The Local Authority which has statutory responsibility for conducting assessments and reviews under this legislation. Relevant Person The person who is, or may become, deprived of their liberty in a hospital or care home. Registered Care Homes - subsequently referred to as care homes in this document and includes what may be called residential and/or nursing homes. 3
Independent Best Interest Assessor a social worker, registered nurse, psychologist or occupational therapist who has also completed a course of study to become a BIA and works independently of any Council or Agency. Agency Best Interests Assessor - a social worker, registered nurse, psychologist or occupational therapist who has also completed a course of study to become a BIA and provides such services through an agency such as a social care agency or employment agency. These arrangements are not covered by this protocol 5. Scope and Aims of the Protocol This protocol aims to outline how local authorities will work in partnership with Independent BIA s in order to address the workforce implications of the Supreme Court judgement. This protocol does not restrict the ability of any Local Authority to come to local, individual arrangements for commissioning Independent or Agency BIA s but seeks to ensure consistency or practice across its members and to manage the costs incurred by an exponential rise in the need for DoLS authorisations. Where Local Authorities choose to make individual arrangements, they will not be able to rely on any provisions within this protocol that are inconsistent with the individual arrangements they have agreed. This protocol encompasses arrangements and processes for: Undertaking deprivation of liberty best interests assessments Supporting Independent BIA s Quality assuring the work of Independent BIA s Inclusion on a centrally held list of Independent BIA s This protocol will not cover arrangements with DoLS Mental Health Assessors. 6. Principles The principles underpinning this protocol are: Appropriate and transparent arrangements should exist to facilitate a larger workforce to cope with the additional requests for DoLS authorisations. Processes should be developed and agreed in respect of supporting and training Independent BIA s, as a matter of good governance and to improve outcomes for the relevant person. Suitable arrangements should be established and agreed to establish baseline costs in circumstances which will be paid by the Supervisory Body in relation to Independent BIA work. 4
Supervisory Bodies should establish quality assurance arrangements in relation to assessments provided by Independent BIA s in order to ensure equitable practice for those deprived of liberty. Supervisory Bodies must establish arrangements to ensure that the legislative requirements are met in relation to eligibility to be a BIA including training, insurance and DBS. 7. Key Responsibilities The Supervisory Body is responsible for ensuring it has an adequate number of BIA s to carry out its statutory duties. Supervisory Bodies have developed a range of different models to achieve this from substantive BIA s, to entirely commissioned BIA s. There is great variety across the Country in the use of Independent or Agency BIA s. The Supervisory Body commissions assessments and receives them once completed by the assessor/s. The Supervisory Body must ensure that BIA s have the skills, qualifications and training to provide the role and ensure the complex requirements to avoid conflict of interest are met When selecting a BIA the supervisory body must not select an assessor if that person is involved in the care, or making decisions about the care, of the relevant person. Where the managing authority and supervisory body are both the same body, the supervisory body must not select a person to carry out a best interests assessment who is employed by it or who is providing services to it. 8. Determining Eligibility to be a Best Interests Assessor Prior to using an Independent BIA the Supervisory Body must confirm that the person is Is a registered social worker, registered nurse, occupational therapist or a chartered psychologist Is not suspended from the register or list relevant to the person s profession has at least two years post registration experience in one of the professions mentioned above has successfully completed training that has been approved to be a best interests assessor; 5
completed further training relevant to their role as a best interests assessor in each 12 month period has the skills necessary to obtain, evaluate and analyse complex evidence and differing views and to weigh them appropriately in decision making. be insured in respect of any liabilities that might arise in connection with carrying out the assessment; have a DBS certificate have the skills and experience appropriate to the assessment to be carried out which must include, but are not limited to an applied knowledge of the Mental Capacity Act 2005 and related Code of Practice; and the ability to keep appropriate records and to provide clear and reasoned reports in accordance with legal requirements and good practice. 9. Evidence of eligibility in respect of independent BIA s It is expected that an Independent BIA will be recommended via the DoLS lead for the geographical area where they practice. The DoLS lead will Assure themselves that the work of the Independent BIA meets a required standard (by interview, audit of assessments or other method) See the evidence of insurance and DBS See evidence of initial and annual training See evidence of Safeguarding training which is within the last three years at least. The DoLS lead will then be in a position to add the Independent BIA s name to the national list of Independent BIA s. This does not preclude another Council from interviewing an Independent BIA or assuring themselves of quality but it does verify that the criteria to practice is met and that another DoLS lead is assured of quality, which another Council may choose to rely on. Individual arrangements will be made by Local Councils with Agencies who provide BIA services. 10. Quality Assurance ADASS consider it to be good practice that Supervisory Bodies establish benchmarks for good practice in relation to assessments for DoLS. This could be any of the following prototype completed forms guidance sheets for practitioners completing forms peer audit of assessments regular audit of assessments agreed training standards and expectations 6
expectation for ongoing CPD The same expectation of quality should extend to any Independent BIA s carrying out assessments. 11. Duties of the Independent best interest assessor The Independent BIA will use their specialist skills and expertise to carry out any of the following assessments No Refusals, Age, Mental Capacity and Best Interest Assessments and eligibility if requested This will include but is not limited to the organisation and management of visits to services users, Managing Authorities, family members and carers. They will keep full and accurate records of the time spent in carrying out the assessments and will provide assessments to the Supervisory Body within statutory time scales. Assessments will be submitted in line with the Councils expectations.. 12. Supervisory Body Support and training for Independent BIA s Supervisory Bodies will make individual arrangements to support any Independent BIA that it endorses and uses. This will include some or all of the following - Opportunity to attend peer support/supervision groups Opportunity to attend annual update training Feedback on assessments Audit/peer audit of assessments Information on legal updates Quality standards for completion of forms. Supervisory Bodies will need to decide whether to support a student who wishes to become an Independent BIA. Generally students will need to take part in a shadowing exercise which will be provided and overseen by the supervisory body. Supervisory Bodies who provide this opportunity may want to ensure than once qualified the Independent BIA provides a number of assessments for free in return for the shadowing experience. 13. Payments ADASS have established a protocol for the inter agency management of DoLS. Within that protocol is a recommended fee schedule. From April 2015 the cost for the different levels of activity is as follows: Partial Assessment (BIA only) ( 100) where a DoL assessment has been started but terminated early in the process e.g. the relevant person was assessed as having capacity. This is likely to require only one assessment to be completed and no further consultation required. 7
Full Assessment (BIA) ( 300) where the full range of DoL assessments have been completed (Age, No Refusals, Mental Capacity and Best Interests) by the BIA Review - This will be paid as either a partial or full assessment and charged as described above. ADASS recommends that payments to Independent BIA s should mirror but not exceed this fee schedule. In some areas market forces may necessitate a different arrangement. The Supervisory Body will generally make separate arrangements for travel either included within the above fee or at an additionally agreed rate. A specimen Independent Agreement is attached as Schedule One to this agreement. 14. Confidential information The Independent Best Interest Assessor will keep confidential any information relating to the DoLS assessments undertaken and shall not use, divulge or communicate the same to any third party without the agreement of the Supervisory Body. The BIA will process personal and sensitive data to the extent and in such manner as is necessary for the provision of this service or as is required by law or any regulatory body. The Best Interest Assessor shall implement appropriate organisational and technical measures to ensure the integrity and security of information obtained and shall at all times comply with the provisions of the Data Protection Act 1998. Individual Supervisory Bodies will have additional requirements in relation to storing personal or sensitive data on portable media, such as laptop computers, memory sticks or CD/DVDs. At the end of each assessment the Independent BIA agrees to complete and return to the DoLS Team a completed assessment report and to ensure that all data both in electronic and other formats is disposed of in accordance with standards relating to the disposal of confidential records or is returned to the DoLS team for storage or disposal. The ownership of the assessment records remains with the Supervisory Body at all times. 8
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SCHEDULE 1 Independent Agreement xxxxxxxxx Supervisory Body (Address xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx) And.. TERMS OF APPOINTMENT FOR THE PROVISON OF SERVICES AS A DEPRIVATION OF LIBERTY SAFEGUARDS (DoLS) BEST INTERESTS ASSESSOR 10
These Terms of Appointment are made on.... BETWEEN The DoLS Team (on behalf of the xxxxxxx Supervisory Body) and.... (The Best Interests Assessor) 1. INTRODUCTION 1.1 This document is intended to assist the Best Interest Assessor in conducting and completing their duties relating to the Deprivation of Liberty Safeguards (DoLS) it should be noted that this document is not intended to replace the DoLS Code of Practice or specific specialist training but is merely meant to assist in the clarification of the role and expectations. 1.2 This agreement records the terms on which the BIA agrees to provide professional services to the Supervisory Body through the DoLS Team. 1.3 The BIA is an independent assessor and operates as an independent professional. 1.4 The BIA must provide services in accordance with any written guidance issued by the DoLS Team from time to time. 2. COMMENCEMENT AND DURATION 2.1 These terms will commence on.... and will continue for a period of 12 months subject to the annual requirements for BIA re approval unless terminated in accordance with paragraph 12 below. 3. DUTIES OF THE BEST INTEREST ASSESSOR 3.1 The BIA will use their specialist skills and expertise to carry out any of the following assessments No Refusals, Age, Mental Capacity and Best Interest Assessments 3.2 This will include but is not limited to the organisation and managements of visits to services users, Managing Authorities, family members and carers. 3.3 The Best Interest Assessor shall maintain full and accurate records of the time spent in providing the Service and shall forward these records to the DoLS Team for payment in accordance with paragraph 7.6. 3.4 The BIA will complete assessment documentation and provide it to the Supervisory Body within statutory time scales. 11
3.5 The BIA will keep the DoLS Team advised of the progress of the service on which they are working. 3.6 The BIA will where reasonably possible attend monthly support group meetings. 3.7 The BIA will comply with the Law for the time being in force and in particular will comply with all Equal Opportunities Legislation and anti-discriminatory practices and the Mental Capacity Act 2005 in the supply and provision of the Service under this Agreement. 3.8 The Best Interest Assessor may, at any reasonable time, in connection with their assessment examine and take copies of: any health record any record of, or held by, a local authority that was compiled in accordance with a social services function, and any record held by a care home which they consider may be relevant to their assessment. The Best Interest Assessor should list in their assessment report what records they examined. 3.9 The Best Interest Assessor shall provide the Service and related records within the statutory timeframe specified by regulations and explained in the DoLS Code of Practice. 4. PLACE OF WORK AND RESOURCES 4.1 The BIA will provide their own place of work and all other equipment and resources necessary to enable them to carry out the service. 5. PROVISION OF INFORMATION 5.1 The BIA must provide copies of relevant documentation to evidence that appropriate insurance and or indemnity arrangements are in place. 5.2 This must be an adequate and appropriate indemnity arrangement which provides cover in respect of any liabilities that might arise in connection with carrying out the assessment. This means that the BIA must have - (a) a policy of insurance; (b) an arrangement made for the purposes of indemnifying a person; or (c) a combination of a policy of insurance and an arrangement made for the purposes of indemnifying a person. 5.3 The BIA will provide copies of relevant documentation to evidence appropriate training has been undertaken in order for the Service to be provided and they will provide evidence of their re-approval at the end of each 12 month period. 12
5.4 The BIA must provide evidence that they hold a satisfactory and current Disclosure and Barring Service certificate. 6. AVAILABILITY 6.1 The BIA is under no obligation to accept instructions for assessments and no guarantee is given by the Supervisory Body that any work will be offered to the BIA. 7. FEES 7.1 The Supervisory Body will pay the BIA for the services described in paragraphs 3.1 to 3.9. 7.2 All assessments completed will be paid for at the rate specified on the attached fee schedule. 7.3 Travel will be paid at the same hourly rate plus mileage. 7.4 At periods to be agreed with the Supervisory Body the BIA will complete and send a signed invoice for the provision of the service which will include the number of hours and the length of time taken to travel. 7.5 Payments will be made in arrears subject to receiving the invoices as described at 7.4. 8. CONFIDENTIAL INFORMATION 8.1 The Best Interest Assessor will keep confidential any information relating to the DoLS assessments undertaken and shall not use, divulge or communicate the same to any third party without the agreement of the Supervisory Body. 8.2 The BIA will process personal and sensitive data to the extent and in such manner as is necessary for the provision of this service or as is required by law or any regulatory body. 8.3 The Best Interest Assessor shall implement appropriate organisational and technical measures to ensure the integrity and security of information obtained and shall at all times comply with the provisions of the Data Protection Act 1998. 8.4 Personal or sensitive data must not be stored on portable media, such as laptop computers, memory sticks or CD/DVDs, unless encrypted. Password protection by itself is not considered sufficient to protect sensitive data. 9. STATUS AND LIABILITY 13
9.1 Nothing in this Agreement shall render the BIA an agent, partner or employee of the Supervisory Body. 9.2 The Best Interest Assessor is acting as an independent agent and the Supervisory Body will not be liable for any of the acts or omissions of the BIA. 10. TAX AND TAX INDEMNITY 10.1 The Best Interest Assessor will ensure that where necessary all appropriate tax and national insurance contributions are made to HM Revenue and Customs and the Supervisory Body will not be responsible or liable for any contributions due or for notifying HM Revenue and Customs regarding such contributions. 10.2 The BIA will confirm to the Supervisory Body registration with HMRC as selfemployed (for tax purposes) where necessary. 11. DOCUMENTS AND OTHER RECORDS 11.1 At the end of each assessment the BIA agrees to complete and return to the DoLS Team a completed assessment report and to ensure that all data both in electronic and other formats is disposed of in accordance with standards relating to the disposal of confidential records or is returned to the DoLS team for storage or disposal. 11.2 The ownership of the assessment records shall remain with the Supervisory Body at all times. The BIA must return or destroy all records collected or processed as part of this agreement, as instructed by the Supervisor Body on completion or termination of this agreement. The Best Interest Assessor must not retain any records in electronic or manual format. 12. TERMINATION 12.1 This Agreement may be terminated by either party with the provision of one month s written notice to the other party. 12.2 The Supervisory Body shall be entitled to immediately terminate this Agreement by notice in writing to the Best Interest Assessor if: 12.2.1 in the reasonable opinion of the Supervisory Body it is no longer practicable to maintain a satisfactory or viable relationship with the Best Interest Assessor because either the Best Interest Assessor has acted unlawfully or fraudulently or because (owing to the Best Interest Assessor s conduct) there has been a serious breakdown of mutual trust and confidence between the Supervisory Body and the Best Interest Assessor. 14
12.3 Written notice must be delivered to the Supervisory Body at xxxxxxxxxxxxxxxxxxxxxxxxxx address. Signed. Dated On behalf of the xxxxxxxxxxx Supervisory body. Signed. Dated Best Interest Assessor 15