Surrey Care Association Practical Application of MCA 26 February 2014 Ashcroft’s experience of applying MCA

Practical application of MCA: Organisational learning in action! Two examples: Compliance with CQC Outcome 2: Consent to care and treatment Application to Court of Protection for permission to use restraints

Compliance with CQC Outcome 2: Consent to care and treatment Prior to recent inspections: Best interest decisions made as determined proportionate by Service Managers Decision-making processes defined by Service Managers according to Ashcroft guidance and practice Embedded good practice to obtain consent and agreement to choices and decisions MCS training provided for all staff – module within Safeguarding training

Non-compliance reported at several services Standard CQC wording used – feels pretty heavy: “ Where people did not have capacity the provider did not always act in accordance with legal requirements” “ People who use the service cannot be confident that their human rights will always be respected” “ The provider had not taken appropriate steps to establish where service users lacked capacity and act in accordance with the best interests of the person, in line with the MCA”

What evidence did CQC use to draw these conclusions? No standard MCA assessments Inconsistent documentation of best interest decisions Staff not always demonstrating clear understanding of MCA No stand-alone training in MCA Some findings reasonable… Impact on others - locked drinks cupboard Conflicting priorities - restricted windows Triangulation – locked doors Proportionality – decoration Comment on placements Inconsistency but perhaps not all…

So what have we learned? Requirement to carry out mental capacity assessment in standard form for all the people we support All practices reviewed, particularly those which are long- standing Best interest decisions made (or confirmed) where deemed appropriate and proportionate Best interest decisions documented in consistent format Stand-alone MCA training for all staff to raise level of knowledge and awareness Internal audit processes improved to ensure all Services remain compliant

Application of the DOL Safeguards for a man requiring physical restraint Outline of situation: Man living in own home, supported on 2:1 basis (Supported Living) Episode of life-threatening self-injurious behaviour Held by two staff for several days Family and Ashcroft agree that use of loose material ties to hands is in best interest Psychologist fails to attend or support use of ties Acute services unwilling/unable to provide place of safety Ashcroft applies to Court of Protection for permission to use loose material ties

Salient points about the Deprivation of Liberty Safeguards Amendment to the Mental Capacity Act 2005 Allows restraint to be used but only if in person’s best interest Extra safeguards if person being deprived of his/her liberty Safeguards apply to care homes and hospitals – ‘Standard Authorisation’ required from local authority or health body Important safeguard is that the person has someone appointed with legal powers to represent them In care homes and hospitals provision for emergency deprivation via ‘Urgent Authorisation’ process Safeguards do not apply to people in Supported Living - the only option if there is to be a deprivation of liberty is to make an application to the Court of Protection

COP application process Straightforward process using standard forms Requirement for assessment of capacity for to be completed (Form COP3) – completed by Doctor Fees of £400 – funded by Ashcroft COP have a backlog, but circumvented by ‘Fast-track’ process COP responded within 48 hours

Progression of the Application Interim Order granted immediately by Senior Judge Lush determining that in best interest to apply loose material ties Official Solicitor engaged to act for the man (funded by him) First hearing held one month later - interim order extended whilst further information obtained Judge ordered CCG and family joined as parties to the action Second hearing held two months later - Psychologist ordered to carry out mental capacity assessment and CCG required to comment on the deprivation Third hearing held two months later - open permission granted for Ashcroft to apply loose material ties, subject to any party re- applying to Court

So what have we learned? Better understanding of DOLS overall Clarity about how DOLS relates to care homes and hospitals vs. Supported Living Decisive action required if all parties cannot agree on a best interest decision (although likely that COP permission is required irrespective of this agreement) Ambiguity about what deprivation actually means and whether it exists in a specific set of circumstances Unusual, but COP can be accessed by Service Providers COP process straightforward, supportive and non-threatening If you want to stay on the right side of the law, get a Court Order!

Contact details David Holmes Chairman, Ashcroft Sharon Raeburn Joint Managing Director, Ashcroft