The Mental Capacity Act and Deprivation of Liberty Safeguards Implications for Commissioners and Care Providers Bruce Bradshaw Patient Experience Manager NHS England – North Yorkshire & Humber

The outcomes people say they want -related quality of life Accommodation cleanliness and comfort Control over daily life Food and nutrition Dignity Occupation Safety Social participation and involvement Personal cleanliness and comfort

Feedback from People who use services People want to feel safe but also to maintain relationships Access to justice: criminal, social or restorative Support with Difficult Decision Making But, 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

We think we will get this...

...we get this!

The NHS Mandate Ensure that CCGs work with local authorities to ensure that vulnerable people, particularly those with learning disabilities and autism, receive safe, appropriate, high quality care Delivery of 100% of actions set out in the Winterbourne View Concordat and Francis response Ensure that there is a capable system of safeguarding that is resilient to the transition and linked to quality assurance NHS and Social Care Outcome Frameworks

6Cs - Values essential to compassionate care Competence Compassion 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. Communication Courage Commitment Communication 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.

Legal Framework “Community care law remains a hotchpotch of conflicting statutes….” Luke Clements Community care and the Law Statute Case Law Codes of Practice Professional Codes Contracts Policy Procedures Protocols Legal Terms: Must Should/Shouldn’t May Duty …….

Legal Framework Human Rights Act e.g. Fraud Act; Sexual Offences Act Rights & duties on public bodies Authority to act against person’s wishes Legal intervention with alleged perpetrator e.g. Fraud Act; Sexual Offences Act e.g. Mental Capacity Act/Deprivation of Liberty Safeguards; Mental Health Act Equality Act; Health & Social Care Act 2008 & 2012; NHS Community Care Act 1990

Mental Capacity – A fundamental rights Mental Capacity Act Principles Must assume a person has capacity unless proved otherwise Must not treat people as incapable of making a decision unless you have tried all you can to help them Do not treat someone as incapable of making a decision because their decision may seem unwise Must not do things or, take decisions for people without capacity in their best interests Before doing something to someone or making a decision on their behalf, consider whether you could achieve the outcome in a less restrictive way

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 decisions The right to make an unwise decision does not abdicate a duty of care – helping individuals in making informed choices & taking reasonable steps to offer support Where adults lack capacity to make that decision, we have a duty to act in their best interests.

Deprivation of liberty safeguard High restriction Low restriction Authorised under section 5 & 6 of the Mental Capacity Act Requires Deprivation of Liberty Authorisation Restriction(s) resulting in complete and effective control The 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 liberty To 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 reviewed Provides 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 interests All care must be in the persons best interest and least restrictive as is viable. Unlawful restriction is a safeguarding issue

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 care Work with health providers and local authorities to ensure appropriate capacity in the system of professionals qualified to carry out best interest assessments Support 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?

Indicators of how the MCA is being used include: Number of referrals to IMCAs (statutory advocates) Number of referrals for DOLS Number of Best Interest Assessor (health) available and their competencies and capacity Do Trusts report Court of Protection cases to CCGs or Safeguarding Boards? Is this being used in contract monitoring The 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 2010-2011, 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.

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