Presentation on theme: "The Mental Capacity Act and Deprivation of Liberty Safeguards Implications for Commissioners and Care Providers Bruce Bradshaw Patient Experience Manager."— Presentation transcript:
1 The Mental Capacity Act and Deprivation of Liberty Safeguards Implications for Commissioners and Care ProvidersBruce BradshawPatient Experience ManagerNHS England – North Yorkshire & Humber
2 The outcomes people say they want -related quality of life Accommodation cleanliness and comfortControl over daily lifeFood and nutritionDignityOccupationSafetySocial participation and involvementPersonal cleanliness and comfort
3 Feedback from People who use services People want to feel safe but also to maintain relationshipsAccess to justice: criminal, social or restorativeSupport with Difficult Decision MakingBut, some 70% of all ‘social care clients’ lack capacity in some aspects of their decision making and need to be supported in the context of the Mental Capacity Act. This applies to some 80% of those in care homes.People in Care Homes also use NHS services
6 The NHS MandateEnsure that CCGs work with local authorities to ensure that vulnerable people, particularly those with learning disabilities and autism, receive safe, appropriate, high quality careDelivery of 100% of actions setout in the Winterbourne View Concordat and Francis responseEnsure that there is a capable system of safeguarding that is resilient to the transition and linked to quality assuranceNHS and Social Care Outcome Frameworks
7 6Cs - Values essential to compassionate care CompetenceCompassion is how care is given through relationships based on empathy, respect and dignity.It can also be described as intelligent kindness and is central to how people perceive their care.Competence means all those in caring roles mist have the ability to understand an individual’s health and social needs.It is also about having the expertise, clinical and technical knowledge to deliver effective care and treatments based on research and evidence.Care is our core business and that of our organisations; and the care we deliver helps the individual person and improves the health of the whole community.Caring defines us and our work. People receiving care expect it to be right for them consistently throughout every stage of their life.CommunicationCourageCommitmentCommunication is central to successful caring relationships and to effective team working. Listening is as important as what we say. It is essential for ‘No decision without me’.Communication is the key to a good workplace with benefits for those in our care and staff alike.Courage enables us to do the right thing for the people we care for, to speak up when we have concerns.It means we have the personal strength and vision to innovate and to embrace new ways of working.A commitment to our patients and populations is a cornerstone of what we do. We need to build on our commitment to improve the care and experience of our patients.We need to take action to make this vision and strategy a reality for all and meet the health and social care challenges ahead.
8 Legal Framework“Community care law remains a hotchpotch of conflicting statutes….” Luke Clements Community care and the LawStatuteCase LawCodes of PracticeProfessional CodesContractsPolicyProceduresProtocolsLegal Terms:MustShould/Shouldn’tMayDuty…….
9 Legal Framework Human Rights Act e.g. Fraud Act; Sexual Offences Act Rights & duties on public bodiesAuthority to act against person’s wishesLegal intervention with alleged perpetratore.g. Fraud Act; Sexual Offences Acte.g. Mental Capacity Act/Deprivation of Liberty Safeguards; Mental Health ActEquality Act; Health & Social Care Act 2008 & 2012; NHS Community Care Act 1990
10 Mental Capacity – A fundamental rights Mental Capacity Act PrinciplesMust assume a person has capacity unless proved otherwiseMust not treat people as incapable of making a decision unless you have tried all you can to help themDo not treat someone as incapable of making a decision because their decision may seem unwiseMust not do things or, take decisions for people without capacity in their best interestsBefore doing something to someone or making a decision on their behalf, consider whether you could achieve the outcome in a less restrictive way
11 Mental capacity & duty of care Adults have the right to make decisions – including decisions about the risks they are willing to take.Adults may plan for future decisionsThe right to make an unwise decision does not abdicate a duty of care – helping individuals in making informed choices & taking reasonable steps to offer supportWhere adults lack capacity to make that decision, we have a duty to act in their best interests.
12 Deprivation of liberty safeguard High restrictionLow restrictionAuthorised under section 5 & 6 of the Mental Capacity ActRequires Deprivation of Liberty AuthorisationRestriction(s) resulting in complete and effective controlThe Deprivation of Liberty Safeguards (DoLS) were introduced as amendments to the Mental Capacity Act 2005 in the Mental Health Act 2007(1) and came into operation on 1st April 2009.The purpose of the Safeguards are to:Prevent arbitrary decisions that deprive vulnerable people of their libertyTo protect service users and if they need to be deprived of their liberty, give them representation, rights of appeal and for the authorisation to be monitored and reviewedProvides a legal framework to protect those (over 18 years) who lack the capacity to consent to the arrangements for their treatment or care.The safeguards only apply to people who lack capacity to consent to care/treatment they receive, and are over 18yrs of age and receive care in a hospital or a care home setting and the care they receive deprives them of their liberty and they are not detained under the mental health act.A major part of preventing DoL is minimizing any restraint. Restraint must be appropriate, proportionate and in the patient’s best interestsAll care must be in the persons best interest and least restrictive as is viable. Unlawful restriction is a safeguarding issue
13 Mental Capacity Act – Commissioners Retains responsibility for assuring through the commissioning process compliance with the MCA 2005 and DoLS legislation of all providers of health careWork with health providers and local authorities to ensure appropriate capacity in the system of professionals qualified to carry out best interest assessmentsSupport the training and education of health professionals and best interest assessors to deliver effective safe quality patient services.How do you ? CCG know how well you are doing?
14 Indicators of how the MCA is being used include: Number of referrals to IMCAs (statutory advocates)Number of referrals for DOLSNumber of Best Interest Assessor (health) available and their competencies and capacityDo Trusts report Court of Protection cases to CCGs or Safeguarding Boards? Is this being used in contract monitoringThe IMCA service started in 2007 when it provided a service for 5,266 people and has been providing a statutory service for five years. During , it provided a service for 11,899 people. This is an increase of 120% over the five years.The latest data on IMCA referrals shows that these are going down – so fewer people receive the safeguards of having an IMCA.The largest decrease of referrals to IMCAs is within safeguarding. Only 1.3% of people who receive safeguarding help from the local authority get an IMCA. This is surprisingly low.
15 Some Question to ask: (there are more!) How will you assure that MCA leads have the right accountability, experience, knowledge and access to legal advise?Are you keeping abreast of case Law and Court of Protection?Do CCG assure themselves that the NHS complies with the MCA?What do contracts require trusts to report?Do they require any MCA audits?Do they stipulate that all staff need annual MCA training?Do they require whether Trusts have a MCA lead?Are you listening to the IMCA services as they will hold the best information on efficacy in your trusts