Protecting the Rights and Safety of the Informal Patient

SH CP 188 Protecting the Rights and Safety of the Informal Patient Summary: The policy describes the processes Southern Health NHS Foundation Trust (SHFT) uses to support the decision making around leave for patients that are admitted informally on to the Mental Health Wards. Keywords (minimum of 5): (To assist policy search engine) Target Audience: Informal Patient, Leave, Risk assessment All inpatient staff on the Mental Health Wards Next Review Date: May 2019 Approved & Ratified by: AMH Quality & Strategy Board Date of meeting: 27 th April 2017 Date issued: Author: Sponsor: Lesley Herbert, Service Improvement Business Partner, AMH Associate Director of Nursing, AMH 1

Version Control Change Record Date Author Version Page Reason for Change 31/03/17 Lesley Herbert 2 5 Removal of duplication 31/03/17 Lesley Herbert 2 6 Change of Doctor to Clinician as a result of changes in clinical leadership 31/03/17 Lesley Herbert 2 7 Took out specific reference to charging mobile phone and changed to a means of contacting the ward 31/03/17 Lesley Herbert 1 6,12,14 Removal of Appendix 2 and reference to example in Appendix 2 no longer required, renumbered appendix 3 Reviewers/contributors Name Position Version Reviewed & Date Lesley Herbert Service Improvement Business Partner V1 Jan 2016 (AMH) Dr Ray Viewieg Clinical Service Director V1 Jan 2016 Nikki Duffin Area Lead Nurse V1 Jan 2016 Dr Priyanka Pillay Clinical Service Director V1 Jan 2016 Carole Adcock Associate Director of Nursing, Quality & AHPs (AMH) V1 Jan 2016 2

CONTENTS Page 1. Introduction 4 2. Scope 4 3. Definitions 4 4. Duties/ responsibilities 5 5. Main policy content 5 5.1 Rights of Capable Informal Patients 5 5.2 Working with the informal Patient 6 5.3 Planning leave for the informal Patient 6 5.4 Informal patients who wish to take unplanned leave 7 5.5 The informal Patient who fails to return from leave 8 5.6 The patient who wants to discharge themselves 8 5.7 Patients who lack capacity 9 6. Training requirements 10 7. Monitoring compliance 10 8. Associated documents 10 9. Supporting references 10 Appendices A1 Being an Informal Patient Leaflet 11 A2 Equality Impact Assessment (EqIA) 12 3

Protecting the Rights and Safety of the Informal Patient 1. Introduction 1.1 The purpose of this policy is to ensure that the Trust strikes the right balance between respecting the rights of patients admitted to hospital informally (for example the right to refuse treatment or to leave the hospital) and the need to protect people who may be vulnerable and at risk of harm to themselves or others. It aims to provide clear instruction and guidance for practitioners when informal inpatients are intending to leave the ward or hospital setting. 1.2 Due to the increased use of the Mental Health Act 1983 (MHA), a higher proportion of patients than ever before are detained and subject to compulsory treatment. Additionally, Deprivation of Liberty Safeguards (DoLS) new powers added to the Mental Capacity Act 2005 (MCA), have allowed other patients to be deprived of their liberty in law if they are deprived of their liberty within the meaning of the Human Rights Act 1998 and if they lack capacity to consent to their care and treatment arrangements. Please refer to the Mental Capacity Act Policy and Guidance (SH CP 39) for more information. 1.3 The legal position is that Non-detained mental health patients should be afforded the same degree of protection as detained mental health patients (Rabone v Pennine Care NHS Foundation Trust, 2012). This case places a positive duty upon the state to take reasonable steps to safeguard the lives of those within their care where they know or ought to have known of the existence of a real and immediate risk to their lives. This is required in relation to Article 2 - the right to life - of the European Convention on Human Rights. Previously, this only related to prisoners, detained mental health patients and immigration detainees: the Supreme Court in Rabone has extended this category to include voluntary mental health patients. This means that there is a need to ensure a balance between respecting a patients right to exercise autonomy and make a free choice, including the right refuse treatment, and ensuring that vulnerable and unwell patients receive the care they need, including protection from risks they may pose to themselves, risks to others, and risks of harm, abuse, or neglect from others. 2. Scope 2.1 This policy applies to all staff working within Southern Health NHS Foundation Trust (The Trust) Mental Health, Learning Disability and Older People s Mental Health inpatient units. That is those Hospitals registered with the Care Quality Commission to provide treatment to patients detained under the MHA 1983. 2.2 For particular services, local approaches may be agreed. The approaches reflect the type, scope and jurisdiction of the service. Any local approach must be formally agreed through Divisional Quality and Safety arrangements and noted as part of this policy as well as available on the Trust s policy section of the intranet 3. Definitions 3.1 Pre-Admission: Is the assessment process used to identify the need for admission to an in-patient setting. 4

3.2 Admission: Admission is the act of transferring care from community or another environment to a Trust inpatient service. 3.3 Planned: Where the admission has been negotiated with the community team, general practitioner, Acute Mental Health Team or carer but the process started the day or days previous to the admission. When the admission is part of a CPA contingency and/or Crisis Plan. 3.4 Emergency: Where the admission process was initiated and carried through on the same day from any service (except same day referrals from other inpatient units/hospitals). 3.5 Transfer: Transfer is defined as the movement of a patient and their care and treatment needs. 3.6 Informal patient: Section 131 of the MHA 1983 makes provision for patients to be admitted to hospital informally, that is without being detained under the MHA 1983. This will include patients who have been detained in the past, even during their current admission, but have been discharged from detention and are therefore no longer subject to detention under the Act. Not subject to the Deprivation of Liberty Safeguards (DoLs) of the Mental Capacity Act 2005. 4. Duties / Responsibilities 4.1 Trust Board are accountable for ensuring that this policy Protecting the Rights and Safety of the Informal Patient is in force and current and that it is reviewed regularly including following incidents and near misses. 4.2 Managers have responsibility to ensure all staff are made aware of the policy and receive appropriate training in its application. They must also ensure the policy is implemented and evaluated. 4.3 Registered staff must complete the initial and ongoing risk assessments of the patients during their admission and prior to any periods of leave, discharge or transfer. 4.4 All clinical staff are responsible for familiarising themselves, adhering to and applying the Protecting the Rights and Safety of the Informal Patient Policy. 5. Main Policy 5.1 Rights of Informal Patients 5.1.1 An informal inpatient is a person who has capacity to decide to agree to admission and treatment in hospital and agrees to that admission. Any informal patient has the right to withdraw their consent to their treatment and/or their admission at any time. However, due to the nature of mental health conditions, it may be that the patient s condition and capacity may have changed and therefore assessment of the patient is necessary prior to the patient discharging themselves. 5

5.1.2 As a minimum standard all wards should make sure that informal patients are made aware of their rights as part of the admission process. See Appendix 1 for a leaflet that should be given to informal patients on admission. 5.1.3 Staff should take care not to act in way that deprives an informal patient of their liberty e.g. Being prevented from leaving hospital; Being told that they will be detained under the Act if they do not comply with requests of staff; or Being kept in circumstances amounting to seclusion without their consent. 5.2 Working with the Informal Patient 5.2.1 As with all patients, informal patients should be engaged in their care and treatment decisions, and should understand the treatment being recommended to them. 5.2.2 On admission, joint safety planning will take place and be entered in the clinical record. The initial plan will focus on the patients first 48 hours on the ward; this will then be reviewed and should include safety plans relating to leave. It is expected that the joint safety plan will be reviewed with the named nurse and patient at regular intervals. The minimum standard for this would be weekly. 5.2.3 Joint safety plans may also act to limit a patient s type of leave. For example agreeing not to leave the ward without an escort or informing a member of staff. This requires capacitous, informed consent. 5.2.4 Patients should not be coerced into accepting the conditions of a joint safety plan. If there are doubts as to the capacity and consent process, this should be referred to the clinician with responsibility for the patient s care. Care needs to be taken to prevent joint safety plans being imposed upon patients who are not genuinely and voluntarily agreeing to them. It is possible for a patient to feel coerced into agreeing to a plan if they feel threated by the consequences of not, for example being detained under the MHA. In these circumstances any consent given by the patient is NOT valid. 5.2.5 Throughout the patients admission it is essential that the ward update the risk assessments in line with the policy and training The assessment and management of the Clinical risk Policy SP CH 27 and Managing Clinical Risk Practice Guidance SH CP 28 5.3 Planning leave for the Informal Patient 5.3.1 Leave should be seen as a therapeutic development for the patient. 5.3.2 On admission, risk assessments should include risks to the patient and others should the patient leave the ward, including planned leave. The assessment should then be reviewed throughout their stay. 5.3.3 The assessment relating to planning leave for the patient should take into consideration: The clinical presentation and nature of the disorder Risk factors including both mental state and physical health Any safeguarding children concerns within the patients informal networks 1 1 Please refer to the Trust Safeguarding Children Policy and associated intranet resources for more information 6

Any safeguarding adults issues whether as victim of abuse, harm, or neglect (including self-neglect), or as an alleged or suspected perpetrator 2 Consultation with the patient Information from relevant others, including relative/carer (if appropriate and with the patients consent) and where applicable children s services The social circumstances of the patient (situation at home/support/finances available) 5.3.4 All risk assessments should be completed in line with the policy and training The assessment and management of the Clinical risk Policy SP CH 27 and Managing Clinical Risk Practice Guidance SH CP 28. 5.3.5 In preparation for leave the Named Nurse will, in collaboration with the care coordinator, the patient, relative and carer, discuss the activities and goals that the patient should be aiming to achieve during their period of leave. Such goals and activities will form part of the patients planned care and recorded on their care plans. A contingency plan which will include the safety plan, contact details of the ward, community team and support will be developed in collaboration with the patient, using the Crisis and contingency form on RiO. The safety plan should also consider any safeguarding child or adult issues or concerns identified. 5.3.6 During leave the named nurse or care co-ordinator should ensure that the patient has the necessary practical requirements to provide day to day care for themselves and that any necessary emotional/practical support has been arranged. 5.3.7 The Named Nurse should ensure that leave arrangements are clearly understood by the patient and communicated to those involved in the patient s care. They should also ensure the following Patient is provided with the ward number and has a mechanism to contact ward staff if required Most up to date contact number for patient is recorded on RiO 5.3.8 The Named Nurse should attempt to agree: A clear means of contacting the patient An agreement on time of return Any additional contact that needs to be made with carers, family or friends 5.3.9 Prior to leave the nurse in charge should satisfy themselves that the earlier risk assessment remains valid. Where there are concerns the nurse in charge will update the risk assessment and implement any necessary risk management strategies, such as offering escorted leave, reducing length of leave. These concerns will be documented with the updated actions. 5.3.10 If the nurse in charge becomes concerned that an informal patient would be at significant risk due to their mental state if they were to leave the ward an attempt should be made to persuade the patient to remain on the ward. If this is unsuccessful, the patient does not or cannot consent to remaining on the ward and the patient wishes to leave, consideration should be given to the use of holding powers under Section 5 MHA 1983. 5.4 Informal Patients Who Wish to Take Unplanned Leave 5.4.1 Although informal patients have the right to leave the ward at any time, the Trust has a duty of care towards them and responsibility for their safety and well-being. 2 Please refer to the Trust Safeguarding Adults Policy and associated intranet resources for more information 7

5.4.2 Where possible leave will be planned as part of the process above, however in circumstances where leave has not been planned but the patient wishes to leave the ward for a short period of time, the nurse must make a decision based on the most recent risk assessment and the patient s current presentation. 5.4.3 If deemed safe it must be clearly documented and return time agreed. 5.4.4 If it is deemed unsafe and inappropriate for the patient, and following discussions with them explaining the risks of them leaving the ward, agreement cannot be reached, then a nurse should consider their powers under section 5(4) and a doctor must be contacted urgently to carry out an assessment under Section 5(2). It is not permissible to deny informal patients the right to go out without conducting an assessment to decide if detention under the MHA is appropriate. 5.5 The informal Patient Who fails to return from leave 5.5.1 If the patient does not return from leave at the expected time, then the ward must try to make contact with the patient by the method agreed in the patients plan. 5.5.2 If contact is not achieved this way then the ward must use the other contact numbers that they have for the patient and also inform the care coordinator/cmht and request that they attempt to visit the patient. Both the ward and the CMHT must continue to obtain contact with the patient. 5.5.3 Once contact has been obtained, risks assessments will need to be completed to ascertain the need for the patient to return to the ward. If it is felt that for the patients or others safety that the patient should return to the ward yet the patient is not willing to informally then MHA assessment is required. 5.5.4 The ward should undertake a risk assessment drawing on information from the CMHT and agree any need to inform and involve other services in the locating of the patient. 5.6 The informal Patient who wants to discharge themselves 5.6.1 Although informal patients have the right to discharge themselves at any time the Trust has a duty of care towards them and responsibility for their safety and wellbeing. 5.6.2 Where possible discharges will be planned as part of the admission process and treatment. If a patient decides to discharge themselves prior to this point, the team supporting the patient must make a decision based on the most recent risk assessment and the patient s current presentation. 5.6.3 If deemed safe then clear follow up plans should be put in place with the community teams to support the patient post discharge, including 7 day follow up arrangements. Crisis and contingency plans should be updated and shared, with the patient and follow up services. This must include contact details of the care co-ordinator/cmht so the patient is able to contact them as well as ensuring the team have current contact details for the patient and where they are going to stay. 5.6.4 If it is deemed clinically unsafe for the patient and following discussions with them explaining the risks of them discharging themselves from the ward, then a nurse should consider their powers under section 5(4) and a doctor must be contacted urgently to carry out an assessment under Section 5(2). It is not permissible to deny 8

informal patients the right to discharge themselves without conducting an assessment to decide if detention under the MHA is appropriate. 5.7 Patients who lack capacity to consent 5.7.1 Patients who lack capacity to consent to admission and/or treatment/ or to discharge themselves. 5.7.2 Section 1 MCA provides a statutory presumption of capacity for anyone over 16. The care and treatment of any patient over 16 must be based on an assessment of capacity based on the definition provided by section 2 and 3 of the MCA. 5.7.3 For defining who can be an informal patient, and how to detain people lacking capacity, the Supreme Court s decision in Cheshire West is important for two reasons. 5.7.4 First, the Supreme Court confirmed that an informal patient can only be a patient who fully understands what it means to be an informal patient and their rights under such an admission. A patient lacking capacity to consent to admission and who is compliant cannot be admitted informally. In most circumstances, we must use either the MHA or DoLS to detain the patient. 5.7.5 Second, the Supreme Court gave the acid test of when a deprivation of liberty occurs and when either DoLS or the MHA must be used to detain the patient: Is P under constant supervision and control; and Is P not free to leave? If both these conditions are met, the patient must be detained under either the MHA or DoLS. 5.7.6 Decision-making table (Mental Health Act 1983, Code of Practice 2015, page 106) Individual has the capacity to consent to being accommodated in a hospital for care and/or treatment Individual lacks the capacity to consent to being accommodated in a hospital for care and/or treatment Individual objects to the proposed accommodation in a hospital for care and/ or treatment; or to any of the treatment they will receive there for mental disorder Only the Act is available Only the Act is available Individual does not object to the proposed accommodation in a hospital for care and/or treatment; or to any of the treatment they will receive there for mental disorder The Act is available. Informal admission might also be appropriate. Neither DoLS authorisation nor Court of Protection order available The Act is available. DoLS authorisation is available, or potentially a Court of Protection order 5.7.7 A person who lacks capacity to consent to being accommodated in a hospital for care and/or treatment for mental disorder and who is likely to be deprived of their liberty should never be informally admitted to hospital (whether they are content to be 9

admitted or not (Code of Practice, 13.53). The decision maker needs to check if the scenarios under Schedule 1A of the MCA applies. If the patient falls into any one of the five examples given in Schedule 1A, the patient must be treated under the MHA. 5.7.8 In an emergency situation, section 4B of the MCA allows for the deprivation of an individual s liberty for the purpose of life sustaining treatment or doing any vital act while a decision is sought from the court. Section 4 of the MHA also makes provision for admission in cases of emergency. (COP 2015, 13.53) 5.7.9 Decision-makers should also consider whether an individual deprived of their liberty may regain capacity or may have fluctuating capacity. Such a situation is likely to indicate use of the Act to authorise a deprivation of liberty and should be preferred over use of a DoLS authorisation or Court of Protection order. (COP 2015, 13.54). 6 Training Requirements 6.1 All training in the divisions will be on a bespoke basis and will form part of the local training induction for all inpatient staff. 7 Monitoring Compliance 7.1 A set of generic practice standards are in place to support audit and review: 8 Associated Documents Managing Clinical Risk Practice Guidance SH CP 28 The assessment and management of clinical risk policy SH CP 27 Safeguarding Adults Policy SH CP 15.2 Mental Capacity Act Policy and Guidance (SH CP 39) Consent to Examination and Treatment (SH CP 16) 9 Supporting References MHA 1983 (amended 2007) Mental Capacity Act 2005 Deprivation of Liberty Safeguards (2007) 10

Appendix 1 Being an Informal Patient Leaflet CS38393 SHFT Being an Informal Patient le 11

Appendix 2: Equality Impact Assessment The Equality Analysis is a written record that demonstrates that you have shown due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations with respect to the characteristics protected by the Equality Act 2010. Stage 1: Screening Date of assessment: 16 October 2015 Name of person completing the assessment: Job title: Responsible department: Intended equality outcomes: Who was involved in the consultation of this document? Ricky Somal, Equality and Diversity Lead Susanna Preedy, Head of Nursing and AHP Applied to all protected characteristics: This policy seeks to ensure that people who are using our inpatient facilities are supported to have leave from the ward area and to set systems in place to enable analysis if this is not met. The policy highlights the positive duty upon the state to take reasonable steps to safeguard the lives of those within their care where they know or ought to have known of the existence of a real and immediate risk to their lives. This is required in relation to Article 2 - the right to life - of the European Convention on Human Rights. Please describe the positive and any potential negative impact of the policy on patients or staff. In the case of negative impact, please indicate any measures planned to mitigate against this by completing stage 2. Supporting Information can be found be following the link: www.legislation.gov.uk/ukpga/2010/15/contents Protected Characteristic Positive impact Negative impact Age Disability Gender reassignment Marriage & civil partnership Pregnancy & maternity Race Religion Sex Sexual orientation Stage 2: Full impact assessment The trust will identify and provide reasonable adjustments and provide appropriate interpreting and translation to patients once identified and required The trust will provide appropriate interpreting and translation to patients once identified and required What is the impact? Mitigating actions Monitoring of actions 12