Derbyshire County Council
Equality Impact Assessment Record
Form 2010
Department
Adult Care
Service Area Responsible
Safeguarding
Chair of Assessment Group
Sue Pearson
Title of Policy/ Service/
Function
Mental Capacity Act 2005 Deprivation
of Liberty Safeguards
Stage 1. Prioritising what to impact assess
1.1
Why has this policy, service or function been chosen?
The Mental Health Act 2007 introduced the Deprivation of Liberty
Safeguards (DOLS) as an amendment to the Mental Capacity Act 2005
(MCA). Any person in hospital or a registered care home that lacks
capacity must be assessed in accordance with the Deprivation of
Liberty Safeguards’ Code of Practice to legally deprive them of their
liberty. The safeguards are intended to close the ‘Bournewood Gap’
identified by the European Court of Human Rights in order to provide
protection and a legal framework for people who need to be deprived of
their liberty, and where it is not appropriate to do so under the regime
contained within the Mental Health Act 1983 and as amended by the
Mental Health Act 2007.
From April 1st. 2009 under the Mental Capacity Act, Derbyshire County
Council acquired the responsibility of a Supervisory Body. It is required
to have in place a policy and procedures, processes including
governance, identified assessor roles and a knowledgeable workforce in
order to meet its legal responsibilities. In addition to being a supervisory
body, Derbyshire County Council has a role in supporting the Managing
Authorities. It must also support the medical workforce working as
Mental Health Assessors (MHA), the group of Best Interests Assessors
(BIA), the Paid Representatives, and the IMCA (Independent Mental
Capacity Advocacy) Service.
This Equality Impact Assessment (EIA) is part of this governance
process in that it seeks to identify potential differential or negative
outcomes for people from different communities and put in place an
-1-
action plan to address these. The EIA is a systematic way of finding out
whether DOLS affects all groups equally. It should address real or
potential inequalities resulting from policy and practice, and will help
identify how to better meet the needs of these diverse groups. This
information is also required by the Department of Health (DH) on a
quarterly basis. In addition this EIA is being undertaken as part of an
ongoing programme to ensure that the authority’s policy, procedures,
services and functions recognise diversity and promote inclusion.
1.2
Why does the policy, service or function exist/ what is its
purpose? Who should benefit?
The Deprivation of Liberty Safeguards’ aim is to ensure that an adult is
not deprived of their liberty unless stringent processes as laid down in
law have been followed. The new regime is intended to protect those
who lack capacity, who may not dissent to or resist their care, and who
need or may need to be deprived of their liberty in hospitals or care
homes. This is whether placed under public or private arrangements for
their own safety, and in their best interests for the purposes of their care
or treatment. The care home or hospital providing their care, however,
has what amounts to full control over their freedom to act.
The safeguards do not cover people detained under the Mental Health
Act as they already have the benefit of legal safeguards.
The legislation requires the care home or hospital, the ‘Managing
Authority’, to seek authorisation from the relevant ‘Supervisory Body’:
(Local Authority or Primary Care Trust (PCT)) and contains detailed
requirements about when and how deprivation of liberty may be
authorised.
It provides for a six-part assessment process that must be undertaken
before deprivation of liberty may be authorised and detailed
arrangements for renewing and challenging the authorisation of
deprivation of liberty.
Derbyshire County Council has developed detailed clear referral and
assessment pathways within legal timeframes. All requests for
Deprivation of Liberty Safeguards authorisations are considered by the
Local Authority as the Supervisory Body, and are approved at a senior
management level.
All referrals for requests are treated equitably and all assessments for a
deprivation of liberty authorisation are scrutinised. The assessment
process is designed to ensure that where a request for a deprivation of
liberty has been refused, appropriate actions are taken to ensure the
person is receiving their care or support in the least restrictive and most
person-centred way. Similarly, where a deprivation of liberty
authorisation is approved, practice guidance ensures that the
authorisation is subject to rigorous ongoing scrutiny and review in
-2-
accordance with the Code of Practice.
The Code of Practice clearly references the importance of recognising
different cultures and this is reflected in the Local Policy and
Procedures. The desired outcome is to ensure that the rights of any
adult lacking in capacity aged 18 and over, as laid down in accordance
with the Human Rights Act 1998 and the Mental Capacity Act 2005, are
upheld. This is intended to ensure that a vulnerable person’s needs are
met in a person centred way, in the least restrictive setting, whether a
hospital or care home setting and is compliant with the Mental Capacity
Act 2005.
Stage 2.
Pulling an assessment team together
Name
Sue Pearson (Chair)
Tracy Hutton
Fiona Lloyd
Rob Gordon
Martin Hammond-Hallam
James Gough
Denise Bate
Joan Webster
Dr. Simon Nissenbaum
Prof. Reinhard Heun
Dr. Ivan Bakaltchev
Sarah Bendikas
Stage 3.
Area of expertise/ role
DOLS Service Manager (Derbyshire
County Council, Derbyshire County
PCT)
Best Interests Assessor
Best Interests Assessor
Best Interests Assessor
Best Interests Assessor
Best Interests Assessor
Paid Representative
Paid Representative
Mental Health Assessor
Mental Health Assessor
Mental Health Assessor
Derbyshire Independent Mental
Capacity Advocate
Scoping of the assessment / identifying likely issues
This EIA will seek to identify whether guidance and related information
and training on DOLS is sufficient to meet the needs of all sections of
the community particularly those people from ReGARDS (Religion,
Gender, Age, Race, Disability, Sexuality) communities.
In doing so it focuses on:
 Information and guidance for staff working in social care, either
within the authority or across other disciplines, including
professionals working in health. This will also include that for staff
in care homes supporting residents, whether local authority or
private, voluntary and independent sector.
-3-
 Information that is available to members people experiencing
DOLS, their carers, families and the wider public
Likely issues identified relevant to the equality impact assessment:
-Quality and relevance of awareness- raising sessions through training
and education of all staff groups, including local authority and private
registered care providers
-Problems with communication between the different organisations and
understanding of the processes and the legal timescales for dealing
with the referrals.
Public facing information includes Easy Read versions of booklets and
information, as well as availability of information in other languages if
required.
Training is being rolled out on an ongoing basis to staff and professional
groups, but it is clear additional training and support is required.
Feedback from staff through meetings and briefing sessions has clearly
identified a lack of understanding of the process of DOLS referrals
despite having received training on it. It has also been identified after
talking to Service Users and their families that there are real difficulties
experienced in understanding the process of the authorisations and why
it is taking place. There is a perception from care home managers and
staff that DOLS is viewed as negative and to be avoided.
It is not viewed as linking to the personalisation agenda and being part
of the process of enabling adults without capacity to have greater
choice, planning and control of their care.
A further likely issue identified is around unlawful deprivation of liberty.
This may occur in institutions where there is an embedded culture of
delivering care and practice, which may not consider an individual’s
rights.
Stage 4.
Pulling together all the information
Name of source
Statistical information from various
sources including census, Joint
strategic needs assessment
Audit several homes which have
applied for an authorisation
Feedback from Best Interests
Assessors
Feedback from Mental Health
Assessors
Feedback from Paid
Reason for using
Profile of county, population,
communities and projections of
need
Provides focused information on
the experience and highlights
difficulties and areas where more
support and information required
Professional perspective on the
process for an application
Professional perspective on the
process for an application
Professional perspective on the
-4-
Representatives
Feedback from IMCA Service
Feedback from carers/families
Feedback from CQC Inspectors
Stage 5.
5.1
process for an application
Professional perspective on the
process for an application
Consultation on the
impact/experience of the referral
process
Professional perspective on the
process for an application
Assessing the impact or effects
What does customer feedback, complaints, and discussions with
stakeholder groups tell you about your service, policy and
function, including which aspects are seen as negative,
inaccessible, unhelpful, difficult to use etc?
 Feedback of the type of referrals so far illustrate that it is
predominantly older adults who are being referred under DOLS.
There have been no referrals so far from different ethnic groups
or identifying sexual orientation. There are more female older
adults referred, and a higher number of males with a learning
difficulty.
 Feedback from service user groups, healthcare professionals and
staff indicates a widespread lack of awareness and
understanding of the DOLS legislation and the legal timeframe for
applications and assessments. This has clearly identified issues
around training and accessing training, particularly for the private,
voluntary and independent sector, and the ensuing understanding
of the process. This feedback has highlighted the poor level of
understanding of the Mental Capacity Act and decision making,
and that consideration of the MCA around capacity and best
interests are not routinely embedded in all aspects of care of
vulnerable adults lacking in capacity. There is a lack of
understanding on how to complete the forms and information
provided by the care homes indicates care plans are not updated
and care may not be person-centred.
 Professional staff, in order to be compliant with the Mental
Capacity Act 2005, should have a general awareness of care
planning to reduce restraint and avoid situations where people
are deprived of their liberty. This will also assist them to
understand DOLS and be able to identify when they will need to
seek an authorisation. Staff will be able to direct care planning so
as to avoid deprivation, and where this is not possible, request an
authorisation.
-5-
 The lack of awareness around DOLS has meant that few
unauthorised (unlawful) deprivation of liberty has been identified.
This means there is potentially a large group of vulnerable people
who are not accessing the safeguards. A Derbyshire IMCA who
made a 3rd. party referral under DOLS for a care home has
recently highlighted this. Feedback from the IMCA identified a
lack of training and awareness around DOLS as an issue within
this care home.
 The DOLS Code of Practice clearly references the importance of
recognising different cultures and this is reflected in our Policy &
Procedures. This will enable the Local Authority to identify and
highlight any discrimination.
 There are significant human/civil rights issues under DOLS, with
the potential for legal challenge and also inequalities, so the
monitoring and governance of the safeguards are key.
 The DOLS Team, Best Interests Assessors and Training Team
will work to develop staff confidence in the process of referring
under DOLS.
5.2
What does your information tell you about the effects of the
policy, service or function on the lives of different groups or
communities? Is any of this negative or unwanted?
Groups
Older Adults
Effects identified from data/ information
Older Adults represent the largest single source
for referrals; these are primarily related to
perception of risk. Dementia, which is more
prevalent in this age group, is the major reason
for lack of capacity.
Compliance with the implementation of the
safeguards and the authorisations remains
variable, and corresponds to lack of training and
awareness in care providers. Sometimes
relevant statutory duties with a proper regard for
Human Rights may not take into account the
impact of lifestyle choice issues on group living.
Where the safeguards are implemented
correctly, the effect on an individual’s care are
very positive and reflect Human Rights and
gives this group of disadvantaged people
protections that have previously been lacking.
-6-
Race/ethnicity
Gender
Sexual orientation
Disabled people
Younger People
However, addressing the Human Rights of
adults who are vulnerable through frailty or ill
health is a key responsibility of all statutory
agencies with a public protection responsibility.
Evidence suggests that black and minority
ethnic communities are less likely to access
statutory services. However, lack of training and
awareness in care providers may contribute to
this.
There are currently few referrals under DOLS
and little information to identify whether the
safeguards are being applied differently in
relation to different racial or ethnic groups.
A large proportion of DOLS referrals are for
people with dementia, and data submitted to DH
indicates a higher ratio of older females being
subject to the safeguards. Data also indicates a
higher number of males with learning difficulty.
There is currently no feedback to highlight the
impact of DOLS. However, lack of training and
awareness in care providers may contribute to
this.
There are an increasing number of referrals for
this client group, with a higher proportion of
younger males being referred. There is a key
responsibility of all statutory agencies with a
public protection responsibility to address their
Human Rights and to take into account and
consider the impact on group living. Through
DOLS, there is a new focus on their Human
Rights and the lawfulness of the arrangements
made for their care. These adults are vulnerable
through their disability, and many have lived in
institutions for most of their lives.
The safeguards apply to anyone aged 18 and
over. Referrals in this age group tend to be for
young people with a learning difficulty who
receive institutionalised care. Referrals relate to
perception of risk for the individual, other service
users and staff. Compliance with the
implementation of the safeguards and the
authorisations remains variable, and
corresponds to lack of training and awareness in
care providers.
-7-
Stage 6. Ways of reducing or removing unwanted effects
What small steps could be taken to achieve improvements? Please
outline the main things that need to be altered to reduce any illegal,
negative and unwanted impact.
 Increase awareness/knowledge of healthcare professionals
and LA staff - evaluate existing training of both MCA and
DOLS and its effectiveness on good practice. Additional
training may need to be provided, especially to
homes/institutions with a culture of restrictive practice.
 The 3 new fulltime BIA Lead Practitioner posts will be
instrumental in offering additional support and information to
such homes.
 Feed information from the DH audit of MCA and DOLS starting
in April 2010 from care homes in the county; this will help to
identify homes with specific training needs. This information
can be used to decide whether disparities between groups
amount to adverse impact on some groups or unlawful
discrimination.
 Derbyshire County Council to undertake an audit of all the
care homes in Derbyshire around understanding/implementing
the Mental Capacity Act and DOLS. This audit, which starts in
April 2010, will serve to highlight and assess the impact of
DOLS on our care homes and will provide information and
feedback as part of this EIA. The audit will help illustrate the
numbers of possible referrals for the ReGARDS group as this
is currently an area which is under represented.
 Consult interested parties, service users and members of the
public on awareness of DOLS: this could be achieved formally
through the DH audit or informal approaches such as service
user representatives, focus groups or questionnaires.
 Information systems- information from the DOLS database is
currently being transferred to Framework i to ensure a better
integration of service user information and a more efficient and
streamlined approach to storage of service user information.
This will be made available to other healthcare professionals
involved in DOLS such as BIAs from the PCT. DOLS
information also to be developed and updated on Derbyshire
Intranet (DNet) with consideration being given to a frequently
asked questions ‘FAQs’ web page which could offer advice
-8-
and support through information sharing.
Ensure existing materials and information from the DH and regional
forums are accessible and available and appropriately distributed. This
information must be made available in different formats and languages
if required.
Stage 7.
Finding out whether your assessment has identified
what people think needs changing.
This assessment and the resulting action plan has been developed and
agreed by the DOLS assessment team.
The group who will report on actions taken to senior management will
monitor the implementation of the actions arising from the EIA.
-9-
Stages 8 and 9 - Action planning, target setting and monitoring
TARGETS / SUCCESS CRITERIA
LEAD
RESP
PARTNER
INPUT
RESOURCES
PERFORMANCE
INDICATORS/
MILESTONES
Project
lead
Simon
Stevens
(MCA Lead),
BIA Lead
Practitioners
Training events
including a
DOLS
conference in
May 2010
Increase in
appropriate
DOLS referrals
and staff
confidence
Improved communication between the
different partners, including PCT, private,
voluntary and independent sector,
commissioners and providers
DOLS
assessm
ent team
Health/PCT
Framework i
DNet
Training and
information
materials
widely
available
Increase in
appropriate
DOLS referrals
and staff
confidence
around the
legislation,
increased
awareness in
minority groups
Address lack of awareness of DOLS with
interested parties such as service users, their
families, members of the public
Project
lead &
BIA Lead
Practition
ers
DOLS
Assessment
Team, care
home
managers
Focus groups, Positive feedback
representatives of care homes
,
from DH audit
questionnaires
ACTION
Liaise with the Training Team to review
existing training and its effectiveness to be
well understood and embedded into practice
- 10 -
QUALITY
ASSURANCE
PERFORMANCE
INDICATORS/
MILESTONES
LEAD
RESP
PARTNER
INPUT
To streamline information systems working in
partnership with other resources such as
Frameworki
DOLS
Team
DCC IT team
Measurement of
ease of access to
service user
information from
secure database;
information more
easily accessible
to healthcare
professionals
involved in DOLS
referrals and care
DOLS information on DNet to be kept updated
Project
lead
BIA Lead
Practitioners
Increase in
confidence and
understanding of
DOLS & referral
process
Ensure provision of clear information available
in poster/leaflet form and available in
translated versions
Project
lead
BIA Lead
Practitioners
Increase in
confidence and
understanding of
DOLS & referral
process
ACTION
- 11 -
RESOURCES
QUALITY
ASSURANCE
Step 10. Have your main actions been added to the relevant
business or service plan(s)?
Please indicate below which actions to which plans
Action planned
Liaise with the Training
Team to review existing
training and its
effectiveness to be well
understood and
embedded into practice
Joint multi-agency group
to be set up to look at
improved communication
between the different
partners, including PCT,
private, voluntary and
independent sector,
commissioners and
providers
Address lack of
awareness of DOLS with
interested parties such as
service users, their
families, members of the
public
To streamline information
systems working in
partnership with other
resources such as
Framework i
DOLS information on
DNet to be kept updated
Ensure provision of clear
information available in
poster/leaflet form and
available in translated
versions
Business /
Service Plan
Training
Business Plan
How will performance be
tracked and reported?
Evaluation arrangements
in place with lead
practitioners
MCA DOLS
1st meeting in September
2010
Terms of Reference
Information
advocacy and
Advice work
stream and
plans
Evaluation of Audit
information
Information
Management
Live in Framework I on
02.08.10
Communications DOLS information up to
date and will be included
in all routine updates
reported through
Information Team
Communications DOLS information is
current and up to date in
any DCC adult care
leaflets that reference it.
Reported through
information Team
- 12 -
Step 11. Publishing your assessment
Please indicate below:Your assessment has been signed off for publishing by
Your assessment was published on
Medium/ location
Date
Signed Andrew Milroy
Date
27th July 2010
Added to DCC website
- 13 -