SWBCCG Pol 05

DOCUMENT CONTROL
Reference Number
{lead in specific policy area to provide once policy ratified)
Amendments
Version
0.1
Status
Draft
Sponsor(s)/Author(s)
David Farnsworth
Date By whom
Intended Recipients: Group/Persons Consulted:
Monitoring Arrangements and Indicators: Quality & Safety Committee reporting
Training/Resource Implications: Individual training for Supervisory Body members
CCG Value: Improve – focussing on the quality and safety of services in all parts of the system
Approving Body: Quality & Safety Date Approved:
Committee Feb 2013
Date of Issue April 2013
Review Date
Contact for Review
Policy Location:
Feb 2015
Quality Manager
Intranet
Summary
Key issues to be covered include :-
•
Mental capacity Act
•
Deprivation of Liberty Safeguards
•
Partnership Arrangements
•
Supervisory Body
•
Monitoring
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Contents
Number
1
2
3
4
5
6
7
8
Section
Introduction
Purpose
Roles & responsibilities
Definitions
Procedure
Training
Monitoring
References
Page No.
4
4
5
6
8
9
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1. Introduction
The Mental Capacity Act 2005 for England & Wales came into force in
October 2007. The Act will for the most part only affect people aged 16 and over, and provides a statutory framework for the protection of people who may lack capacity to make some decisions themselves, based on current best practice and common law principles. It also makes it clear who can take decisions in which situations and enables people to plan ahead (Advance
Decisions) for a time when they may lack capacity. The Act also replaces current schemes for Enduring Powers of Attorney and provides Court of
Protection receivers with reformed and updated schemes.
The Act introduced a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years. Also effective from 1 April
2009, the Deprivation of Liberty Safeguards (DoLS) have been added to this
Act which introduced a legal framework around decisions taken by professionals, perceived to be in the best interest of an individual understood to be themselves lacking capacity, to deprive a person of liberty.
Specifically, they were introduced to prevent breaches of the European
Convention on Human Rights (ECHR) such as the one identified by the judgment of the European Court of Human Rights (ECtHR) in the case of HL v the United Kingdom (commonly referred to as the ‘Bournewood’ judgment).
To prevent further similar breaches of the ECHR, the Mental Capacity Act
2005 has been amended to provide safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty, and where detention under the Mental
Health Act 1983 is not appropriate for the person at that time .
As a commissioning organisation, Sandwell & West Birmingham Clinical
Commissioning Group (SWBCCG) fully accepts their responsibilities under
Mental Capacity Act (MCA) legislation. Effective working arrangements are in place in accordance with the Department of Health Code of Practice, which are outlined in this policy, whilst there is also a process flowchart attached offering a quick overview of the process at Appendix a.
2. Purpose
To outline the responsibilities of SWBCCG in applying the Mental Capacity
Act Code of Practice, with regard to ensuring that as Commissioners of services, these responsibilities are also adopted by those that we commission services from.
To set out the arrangements which are in place for Sandwell & West
Birmingham CCG;
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To receive and manage requests for Deprivation of Liberty Safeguards by Managing authorities across commissioned and contracted services
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To ensure effective assessments are undertaken in support of decision making
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To ensure timely and appropriate decision making
•
To ensure effective governance, scrutiny and challenge
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3. Roles & Responsibilities
Accountable Officer
The Accountable Officer is responsible for ensuring that the organisational accountability for delivering the Mental Capacity Act and Deprivation of Liberty
Safeguards is discharged effectively across the local health economy through the CCG commissioning arrangements. The Accountable Officer may delegate this responsibility to the Clinical Lead for Quality & Safety as the
Executive Director Lead for Safeguarding.
Governing Body
The Governing Body has responsibility for setting the strategic tone and context for effective safeguarding and will regularly seek to remain informed on all matters of safeguarding, including the Mental Capacity Act and
Deprivation of Liberty Safeguards. The committee will monitor through output reporting from the Quality & Safety Committee, ensure receipt and oversight of the Annual report and where required make specific challenge. In addition, the Governing Body will;
•
Establish robust contractual arrangements to ensure compliance with the legislation from managing authorities,
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Establish systems for administering the coordination of assessments and the issuing and reviewing authorisations
Clinical Lead for Quality & Safety
As the Executive Director Lead for Safeguarding, the post holder is a voting member of the Quality & Safety Committee. The Clinical Lead is responsible for providing assurance to the Governing Body of the effectiveness of
Safeguarding arrangements, both internally and within commissioned organisations. This post is the Board Lead for safeguarding and Mental
Capacity.
Joint Supervisory Body
Constituted from Supervisory Body members from both Sandwell Local
Authority and the CCG, the individual members are charged with signing off decision making following the appropriate assessments undertaken in response to a request (by health or social care providers) for a Deprivation of
Liberty. Collectively the group then provides;
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Challenge and oversight to local performance
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A forum for the review of consistency in decision making
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Reporting to the Quality & Safety Committee
Quality & Safety Committee
With direct accountability to the Governing Body, the committee provides scrutiny to organisational performance alongside assurance to the Governing
Body.
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All staff
•
All staff, including temporary and agency staff, are responsible for:
Compliance with relevant process documents. Failure to comply may result in disciplinary action being taken.
•
Co-operating with the development and implementation of policies and procedures and as part of their normal duties and responsibilities.
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Identifying the need for a change in policy or procedure as a result of becoming aware of changes in practice, changes to statutory requirements, revised professional or clinical standards and local/national directives, and advising their line manager accordingly.
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Identifying training needs in respect of policies and procedures and bringing them to the attention of their line manager.
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Attending training / awareness sessions when provided.
4. Definitions
Definition of Mental Capacity
A person lacks capacity at a certain time if they are unable to make a decision for themselves in relation to a matter, because of impairment, or a disturbance in the functioning of the mind or brain.
•
An impairment or disturbance in the brain could be as a result of (not an exhaustive list):
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A stroke or brain injury
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A mental health problem
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Dementia
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A significant learning disability
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Confusion, drowsiness or unconsciousness because of an illness or treatment for it
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A substance misuse
Lacking capacity is about a particular decision at a certain time, not a range of decisions. If someone cannot make complex decisions it does not mean they cannot make simple decisions.
It does not matter if the impairment or disturbance is permanent or temporary but if the person is likely to regain capacity in time for the decision to be made, delay of the decision should be considered. Therefore Capacity Testing may be required at various periods.
Capacity cannot be established merely by reference to a person’s age, appearance or condition or aspect of their behaviour, which might lead others to make an assumption about their capacity. An assumption that the person is making an unwise decision must be objective and related to the person’s cultural values.
The Act is underpinned by a set of five key principles;
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A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
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Individuals being supported to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions
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Unwise decisions – just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision
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Best interests – an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests
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Least restrictive option – anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
Best Interests (MCA) –An act done or decision made for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, people involved in caring for the person lacking capacity gain a right to be consulted concerning a person’s best interests.
Best Interest Assessment (DOLS) - An assessment, for the purpose of the deprivation of liberty safeguards, of whether deprivation of liberty is in a detained person’s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm.
Managing Authority (DOLS) - The person or body with management responsibility for the hospital or care home in which a person is, or may become, deprived of their liberty. A managing authority must not, except in an urgent situation, deprive a person of liberty unless a standard authorisation has been given by the supervisory body for that specific situation, and remains in force. It is up to the managing authority to request such authorisation and implement the outcomes.
Restraint - Section 6 of the Act sets out limitations on section 5. It defines restraint as the use or threat of force where a person who lacks capacity resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the person who lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm. Appropriate use of restraint falls short of deprivation of liberty, eg. preventing a person from leaving a ward because they would try to cross a road in a dangerous manner is likely to be seen as a proportionate restriction or restraint, similarly, locking a door to guard against immediate harm is unlikely, in itself, to amount to deprivation of liberty.
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Supervisory Body (DOLS) - A CCG or Local Authority (Social Care &
Health) that is responsible for considering a Deprivation of Liberty request received from a managing authority, commissioning the statutory assessments and, where all the assessments agree, authorising deprivation of liberty.
In the case of hospital patients, where a CCG is commissioning the patient’s care or treatment then the CCG is the supervisory body. In all other cases, the supervisory body is the CCG for the area in which the relevant hospital is located.
In the case of care homes, the supervisory body is the local authority for the area in which the person ordinarily resides. If the person has no ordinary place of residence – they are of no fixed abode – then the supervisory body is the local authority for the area in which the care home is situated.
Supervisory bodies will receive applications from managing authorities for standard authorisations of deprivation of liberty. Deprivation of Liberty cannot lawfully begin until the supervisory body has given authorisation, or the managing authority has itself given an urgent authorisation.
5. Procedure
Under the Mental Capacity Act DoLS, a series of six assessment requirements must be met in determining whether it is necessary to deprive a person of their liberty in their own best interests to protect them from harm.
Once the CCG has received an application for a standard authorisation, and is satisfied that it is valid and correct, they must commission the required assessments. The six required assessments are as follows:
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Age assessment : to assess whether the person being deprived of liberty is aged 18 or over
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No refusals assessment : to ensure that the authorisation being requested does not conflict with a valid decision by a donee of lasting power of attorney (‘an attorney’), or by a deputy appointed for the person by the Court of Protection, and is not for the purpose of giving any treatment that would conflict with a valid and applicable advance decision made by the relevant person
•
Mental capacity assessment: to assess whether the person being deprived of liberty lacks capacity to decide whether to be admitted to, or remain in, the hospital or care home in which they are being, or will be, deprived of liberty
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Mental health assessment: to assess whether the person being deprived of liberty is suffering from a mental disorder within the meaning of the Mental Health Act 1983, but disregarding any exclusion for people with learning disabilities
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Eligibility assessment: to assess whether the person is eligible to be deprived of liberty under the MCA DOLS. Broadly, a person is eligible unless they meet the criteria outlined in the attached guide:
• http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/P ublicationsPolicyAndGuidance/DH_094347
•
Best interest assessment: to ensure that any deprivation is in the best interests of the person, necessary to prevent harm to themselves and is a proportionate response to the likelihood and seriousness of that harm.’
These assessments must be completed within 21 days of receipt of the request from the Managing Authority. Where the application follows an urgent authorisation being given by the Managing Authority, the CCG must arrange for the assessments to be carried out before the urgent authorisation expires
(Seven days).
In accordance with their responsibilities, SWBCCG has ensured the availability of an effective procedure in partnership with Sandwell Metropolitan
Borough Council. This agreement is formalised under a Section 75 partnership agreement between (the former) Sandwell Primary Care Trust and the Local authority and as such has been adopted by the CCG.
Access to the necessary guidance can be found here; http://www.sandwell.gov.uk/faqs/731/protection_of_vulnerable_adults/answer/
357/deprivation_of_liberty_safeguards-faqs_for_professionalswhat_are_the_deprivation_of_liberty_safeguards
The Local Authority provides operational and management support to the process, including the implementation of necessary assessments (Best
Interest Assessments and Mental Health Assessments), document production and management of a Joint Supervisory Body in accordance with the Act.
The CCG continues to participate in the Supervisory Body arrangements, with nominated officers, appropriately trained and supported, available to scrutinize, challenge and sign off / decline deprivation of Liberty requests in accordance with the relevant timescales.
6. Training
All CCG employees who represent the CCG within the Supervisory Body are provided with training and support from the Local Authority Safeguarding
Lead.
7. Monitoring the Compliance and Effectiveness of this Policy
In order ensure that local guidance is followed effectively across the CCG the
Quality & Safety Committee will be responsible for maintaining on-going systems of audit and monitoring.
8. References
Mental Capacity Act 2005
Mental Capacity Act Code of Practice
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The Lasting Powers of Attorney, Enduring Powers of Attorney and Public
Guardian Regulations 2007 (S.I 2007 No. 1253)
CCG Safeguarding Vulnerable Adults Policy
Mental Capacity Act 2005 Deprivation of liberty safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice
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