The Bournewood Safeguards

1. The Bournewood Safeguards An overview for Senior Managers and Commissioners

2. Legal Context • The Bournewood Safeguards represent the Government’s commitment to ensure that the human rights of all its citizens – including those who lack capacity to make major decisions about their lives – are protected. claire.barcham@candi.nhs.uk

3. They set out the processes that providers of care must follow, if they believe that it would be in a person’s best interests to provide care in a way that amounts to a deprivation of the person’s liberty. claire.barcham@candi.nhs.uk

4. The changes are included in the amendments to the Mental Health Act (because the Capacity Act is primary legislation, and only other primary legislation can amend it.) claire.barcham@candi.nhs.uk

5. The illustrative Code of Practice to the Bournewood Safeguards will therefore be inserted once agreed into the Capacity Act Code of Practice • This is important because the Capacity Act code carries with it obligations on professionals and organisations to follow its advice. claire.barcham@candi.nhs.uk

6. Policy and Principles context • Our Health, Our Care, Our Say • The 5 principles of the Capacity Act • Dignity and Care agenda claire.barcham@candi.nhs.uk

7. Care providers and commissioners of care therefore need to take the Capacity Act Principles in particular as their starting point, and ensure that the way that care is provided meets those principles – for example:- claire.barcham@candi.nhs.uk

8. Structured decision making and review • Safeguards AGAINST arbitrary deprivation of liberty • Effective, documented care planning that includes family, friends & carers • Support for people to make decisions where ever they are able, and clarity about capacity assessment where necessary claire.barcham@candi.nhs.uk

9. Ensure that the least restrictive care options are chosen • Keeping people informed • Working to keep people in contact with friends and family • Review of care plans at regular intervals • Deprivation of liberty only when authorised except in an emergency claire.barcham@candi.nhs.uk

10. Key roles: Supervisory bodies • Will be either • PCT’s – where the person is cared for in hospital or registered nursing home • LSSA’s – where the person is cared for in a registered care home The safeguards don’t apply to care arrangements outside of residential or nursing care (ie day care) therefore deprivations in these circumstances are illegal unless it relates to an order from the court of protection, or other framework. claire.barcham@candi.nhs.uk

11. Key Roles: Managing authorities • Managing authorities are those who are providing care- ie MH trusts and PCT’s who managing wards, private and voluntary run care homes claire.barcham@candi.nhs.uk

12. Key roles:professional duties • Professionals undertaking assessments are personally accountable for their decisions • Supervisory and other bodies should not seek to influence their decisions • Supervisory bodies have a duty to ensure there are sufficient numbers of assessors, and that they are suitably skilled and able to maintain their skills and knowledge claire.barcham@candi.nhs.uk

13. Key Roles: Mental Health Assessor • Must be a registered doctor who is either:- • Approved under section 12 • ‘A registered medical practitioner who has special experience in the diagnosis and treatment of mental disorders.’ claire.barcham@candi.nhs.uk

14. Key roles: Mental Capacity Assessor • Can be a Doctor or an AMHP (ASW) or ‘other professional who possesses the relevant skills and experience that would enable them to apply for AMHP status if they so wish.’ claire.barcham@candi.nhs.uk

15. Key roles:Best Interest Assessor • Must be undertaken by an AMHP (ASW) or ‘other professional who possesses the relevant skills and experience that would enable them to apply for AMHP status if they so wish.’ claire.barcham@candi.nhs.uk

16. Key roles: age assessor, eligibility assessor, no refusals assessor • May also be carried out seperately or by the Best Interests assessor. claire.barcham@candi.nhs.uk

17. Provisions re conflicts of interest • The Mental Health & Mental Capacity Assessor may know the person • There must be a minimum of two assessors • No assessors may have a financial interest in the care of the person they are assessing • Assessors may carry out more than one role. claire.barcham@candi.nhs.uk

18. Provisions re conflicts – best interest assessor (AMHP) • Can be an employee of the supervisory or managing authority but MUST NOT be involved in the person’s care (97) • They MUST NOT be on the staff of the hospital concerned • If the supervisory body is also the managing authority, the BIA cannot be employed by them (100) claire.barcham@candi.nhs.uk

19. Conflict: examples- • A PCT who manages wards providing care cannot also employ the AMHP/best interest assessor on its staff • A LSSA which provides direct residential care cannot use an AMHP/best interest assessor on it’s staff • Can a MH trust employ the AMHP/best interest assessor ? (definitely not in same hospital/team) claire.barcham@candi.nhs.uk

20. What is deprivation of liberty? HL case: • Judgement has to be situation and person specific • Is a question of ‘degree and intensity and not one of nature or substance.’ • The care team exercised ‘complete and effective control’ • The applicant was not free to leave claire.barcham@candi.nhs.uk

21. Suggested areas to inform judgement: • Using restraint including sedation • Exercising complete and effective control over:- • Care and treatment • Movements • Contacts • Residence claire.barcham@candi.nhs.uk

22. Effective control cont:- 5. Preventing meaningful attempts to leave 6. Refusing carers/friends/ relatives requests for discharge 7. Loss of contacts or autonomy as a result of the supervision and control used. claire.barcham@candi.nhs.uk

23. Effective control cont:- • Control may be the result of actions OR omissions (doing or not doing) • The effect of the COMBINED action of different (less severe) forms of control may together amount to a deprivation of liberty. • The length of time someone is deprived of their liberty for may be significant. claire.barcham@candi.nhs.uk

24. Where safeguards apply • Residential care and ward based case situations • Private and public placements • Admissions to hospital for physical treatment • No minimum period stated, but the longer the ‘deprivation’ is needed the more likely the protections should apply claire.barcham@candi.nhs.uk

25. The Surrey case • Consequence of Adult Safeguarding Measures. • Husband placed in res care when wife ‘dumped him on street’ (was blind, elderly) • Husband wants to go home, wife want him home • LSSA say she must not remove him. No locked doors, husband and wife encouraged to have contact and visit (with support) • Court found he was deprived of liberty claire.barcham@candi.nhs.uk

26. Process of assessment:1- identifying need for authorisation • Need for authorisation must be requested by managing authority • Should identify in advance – up to 28 days(if at all possible) • Includes move of home • Emergency authorisation for unto 7 days can be given by managing authority claire.barcham@candi.nhs.uk

27. Managing authority must identify if person has someone to represent their needs & inform authorising authority of this. • If no-one is available an IMCA must be appointed if the assessment continues • There will be standard request form. claire.barcham@candi.nhs.uk

28. 2. Acknowledgement of need for assessment • The authorising authority has to consider request for standard authorisation – but can decide it’s not necessary • All requests must be complete within 21 days claire.barcham@candi.nhs.uk

29. 3. Areas for assessment –(I) age • Has to be over the age of 18 claire.barcham@candi.nhs.uk

30. Areas for assessment- (ii) Mental Health Assessment • Must be conducted by a doctor • Could consider advantages of being a doctor who knows the person • Should consider • Whether the person has a mental disorder within the meaning of the MH act (but not applying the LD criteria) • The effects of the deprivation on the person’s mental health claire.barcham@candi.nhs.uk

31. Areas for assessment-(iii) Mental Capacity Assessment • Can be conducted by either a doctor or AMHP/ASW • Purpose is to consider whether the the person lacks capacity in relationship to the decisions regarding their care claire.barcham@candi.nhs.uk

32. Areas for assessment-(iv) Best Interest assessment • Must be undertaken by an AMHP/ASW • Must use the best interest check list • Purpose is to decide: • If a deprivation of liberty is occurring or would occur • If it is in the person’s best interest • If it is necessary to prevent harm claire.barcham@candi.nhs.uk

33. 4. If it is a proportionate response to the risk of harm 5. The level of seriousness of that harm claire.barcham@candi.nhs.uk

34. The best interest assessor must consult: • The managing authority • Relevant care plans and assessments • Family, friends and carers • An IMCA if appointed • Professionals involved in the person’s care claire.barcham@candi.nhs.uk

35. Outcome of best interest assessment: • Decide if deprivation is necessary and in best interests of person affected • Recommend the length of time the authorisation should be in force for (up to 12 months) • Make recommendations as to who should be the ‘relevant person’s representative.’ • Can make recommendations to attach to the authorisation (as related to deprivation of liberty.) claire.barcham@candi.nhs.uk

36. Relevant persons representative • Must be 18 or older • Must be willing to take on role • Must be able to maintain contact • Must not be employed or paid for by the managing body • The relevant person should be given the opportunity to choose their rep if they have capacity claire.barcham@candi.nhs.uk

37. Outcome of best interest assessment: • If deprivation of liberty isn’t justified but is occurring, this must be related to the supervisory body who must inform the managing authority. • If the MA doesn’t appear to be making appropriate changes, the Supervisory Body may consider alerting the appropriate monitoring body. claire.barcham@candi.nhs.uk

38. Areas for assessment: (v) Eligibility Relates to eligibility for detention under the mental health act • Assessor must check that they are not already liable to be detained under MHA • Assessor must check whether the detention relates to the need for ‘treatment’ for mental disorder claire.barcham@candi.nhs.uk

39. If the ‘detention’ is for treatment:- • The authorisation may only be made if the person concerned does NOT object to all or some of the proposed treatment • If the person does object (or might object in the future – based on previous evidence) the MH act should be considered instead of the CA claire.barcham@candi.nhs.uk

40. Other reasons for considering the MHA • The mental health act could be considered for other reasons eg • The person’s care plan includes day care in a way that amounts to deprivation of liberty (which Guardianship could help to authorise but a Bournewood authorisation couldn’t) claire.barcham@candi.nhs.uk

41. Areas for assessment:(vi)no refusals • This refers to whether there would be a conflict with other sources of authority: • A valid advanced directive exists that covers the circumstances of the case • There exists a valid decision by a deputy or attorney appointed by the court of protection claire.barcham@candi.nhs.uk

42. Outcome of assessment:one or more assessment is negative • Standard authorisation cannot be issued • Supervisory body must notify the managing authority, the relevant person, any IMCA & every interested person consulted • The person, the managing authority and any IMCA must be given a copy of the reports claire.barcham@candi.nhs.uk

43. Consider if they need to change how care is commissioned • Managing authority may need to change the way the care is provided to avoid deprivation of liberty • Assess under MH act if appropriate (if this hasn’t already happened.) claire.barcham@candi.nhs.uk

44. Outcome of assessment:standard authorisation is recommended • Supervisory body must provide standard authorisation if this is recommended by all assessors • There will be a standard form • The time limit must be specified (as by best interest assessor) claire.barcham@candi.nhs.uk

45. Approve relevant person’s representative (as recommended by best interest assessor) must be appointed – if none available must appoint advocate not employed by managing authority • Provide copies of authorisation to managing authority, the person, their representative, any IMCA, anyone consulted claire.barcham@candi.nhs.uk

46. Urgent authorisations: • May be granted by the managing authority • Last up to 7 days • May be extended in exceptional circumstances for another 7 days • Should only be given after consideration of all the persons circumstances • Stops if AB rejects standard assessment claire.barcham@candi.nhs.uk

47. Duties of authorising body and managing authority during standard authorisation. Managing authority must:- • Providing information on effects and appeals • Support contact between person and their reps • Inform authorising body if rep ceases contact • Comply with conditions of order claire.barcham@candi.nhs.uk

48. Managing authority must: • Inform authorising body if review is needed. • Inform supervisory body of brief suspension of authorisation to allow treatment under the MH act (up to 28 days) • Request a further standard authorisation at end of initial period if appropriate claire.barcham@candi.nhs.uk

49. Authorising bodies must:- • Appointed suggested rep or advocate • Respond to request to review from managing authority, person themselves or their rep • Keep people informed of review • Can review part of assessment but not all if appropriate claire.barcham@candi.nhs.uk

50. Appeals: • Appeals are to the Court of Protection • Can be made by the person, their representative, an IMCA Areas for appeal include: • Whether they meet the criteria for detention • Period of authorisation • Purpose of authorisation • Conditions of authorisation claire.barcham@candi.nhs.uk