PiPoT and Mental Capacity Act 2005 and Deprivation of Liberty Policy

1. PiPoTandMental Capacity Act 2005 and Deprivation of Liberty Policy Spring and Summer 2018

2. Today’s event • Aim: • To enable you to understand the PiPoTprotocol • to draw to your attention key aspects of the refreshed policy • Overview rather than line by line review • Intended as awareness raising rather than training • Policy does not intend to recite the law, but to focus on local areas of difficulty • Aspiration – legally literate staff able to champion rights-based care

3. A joint policy • Via an agreement under s75 of the NHS Act 2006, the Council delegated adult social care responsibilities to the CCG, and the CCG delegated some children’s health functions to the Council • Both the CCG and Council (‘the Partners’) commission and deliver services to which the MCA applies • Whilst the Council retains statutory responsibility for functions under the MCA which it has delegated to the CCG - most notably acting as supervisory body under the DoLS- local arrangements for authorising deprivations of liberty are managed jointly by the Partners, with the DoLS Team at focus independent adult social work (focus) • The policy was revised by staff from CCG, CPG, focus, Navigo and NLaG – a team effort!

4. Who does the policy apply to? • To the Partners – when delivering and commissioning health and care functions/ services • To all those they commission to deliver health and care functions/ services on their behalf • For the benefit of all those aged over 16 (most of the provisions of the MCA only apply to those over 16) for whom the Partners are responsible re health and care • A person who lacks or may lack capacity is often referred to as ‘P’ • The term ‘care and treatment’ is used to mean health and social care • The law – and the policy – rely on your exercise of professional judgement, and evidencing it

5. Allegations Against People in a Position of Trust (PiPoT)

6. Who? • PiPoTs include all those people working with or providing services to adults with care and support needs. • It requires that all agencies respond appropriately to allegations against PiPoTs, whether they are managers, employees, volunteers or students, paid or unpaid.

7. How? • The Local Authority Designated Officer (LADO) process will be mirrored for adults • A Designated Adult Safeguarding Manager role will fulfil this function within the LA • The protocol applies to partner agencies and organisations in North East Lincolnshire commissioned by or on behalf of NEL to provide services. Non-commissioned and voluntary organisations will also be encouraged to comply with these protocols

8. Allegation? • behaved in a way that has harmed, or may have harmed an adult at risk or child • possibly committed a criminal offence against, or related to, an adult at risk or child • behaved towards an adult at risk or child in a way that indicates they may pose a risk of harm to adults at risk or to children

9. Enquiry Outcomes • Substantiated: there is sufficient identifiable evidence to prove the allegation; • False: there is sufficient evidence to disprove the allegation; • Malicious: there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive; • Unsubstantiated: this is not the same as a false allegation. It means that there is insufficient evidence to either prove or disprove the allegation; the term therefore does not imply guilt or innocence.

10. PiPoT Leads All organisations should identify a PiPoT Lead with overall responsibility for: • Ensuring that the organisation deals with allegations in accordance with this NELSAB procedure • Resolving any inter-agency issues • Liaising with the NELSCB and or SAB on the subject

11. PiPoT Lead Role • Receive concerns • Consider what action is required • Liaise with the DASM when appropriate • Record and document decisions

12. DASM Role • Receive and record concerns • Consider referrals and provide advice and guidance to agencies • Maintain oversight of referrals that are deemed high risk • Liaise with PiPoT Leads to ensure effective management of enquires and identify trends or themes emerging • Ensure referrals to DBS and regulated bodies are made when appropriate • Provide assurance to the Safeguarding Adults Board

13. Why? • 14.128 Allegations against people who work with adults at risk must not be dealt with in isolation. Any corresponding action necessary to address the welfare of adults with care and support needs should be taken without delay and in a coordinated manner, to prevent the need for further safeguarding in future. • 14.129 Local authorities should ensure that their safeguarding information and advice services are clear about the responsibilities of employers, student bodies and voluntary organisations, in such cases, and signpost them to their own procedures and legal advice appropriately. Information and advice services should also be equipped to advise on appropriate information sharing and the duty to cooperate under Section 6 of the Care Act. • 14.130 Local authorities should ensure that there are appropriate arrangements in place to effectively liaise with the police and other agencies to monitor the progress of cases and ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process.

14. Information Sharing The Data Protection Act controls how your personal information is used by organisations, businesses or the government. Everyone responsible for using data has to follow strict rules called ‘data protection principles’. They must make sure the information is: • used fairly and lawfully • used for limited, specifically stated purposes • used in a way that is adequate, relevant and not excessive • accurate • kept for no longer than is absolutely necessary • handled according to people’s data protection rights • kept safe and secure • not transferred outside the European Economic Area without adequate protection The Care Act states: 14.131 Decisions on sharing information must be justifiable and proportionate, based on the potential or actual harm to adults or children at risk and the rationale for decision-making should always be recorded.

15. The Data Protection Act sets out a series of conditions, at least one of which has to be met before an employer can collect, store , use, disclose or otherwise process sensitive information. One of these conditions is: The processing is necessary • for the exercise of any functions conferred on any person by or under an enactment or • for the exercise of any functions of the Crown , a Minister of the Crown or a government department.

18. Ten Key Points

19. One: legal literacy Under the MCA, the Court of Protection has power to make declarations regarding whether a person’s rights under the European Convention on Human Rights (ECHR) have been breached by a public authority, and if so, to award damages for any breach. True or false?

20. One: legal literacy • ECHR Article 1: states have an obligation to secure to everyone in their jurisdiction the rights and freedoms defined in the ECHR. Individuals have rights against the state where such obligations are not met • ECHR Article 5: states that “No one shall be deprived of his liberty save in [specified] cases and in accordance with a procedure prescribed by law”. Specified cases include detention of persons of “unsound mind”. Everyone deprived of liberty, is entitled to take proceedings by which the lawfulness of their detention is decided speedily by a court, and their release ordered if the detention is not lawful • ECHR Article 8: protects an individual’s right to private and family life. Any deprivation of liberty will limit private/ family life; however a deprived person continues to enjoy all the rights and freedoms guaranteed by ECHR, except liberty • https://www.equalityhumanrights.com/en/human-rights/what-are-human-rights

21. Two: defensible practice The MCA authorises the care and treatment of those who lack capacity to consent to it. True or false?

22. Two: defensible practice • The MCA doesn’t authorise care and treatment as such; it provides protection from liability if conditions are met (s5/ 6) • When providing care or treatment – and unable to secure consent - you will be protected from liability only if you • take ‘reasonable steps’ to establish that P lacks capacity in relation to the matter in question • reasonably believe (backed by objective reasons) that P lacks capacity and that it is in P’s best interests to receive it • What constitutes ‘reasonable steps’ will depend on the circumstances: the more serious the decision, the more formal the assessment of capacity required • If you’re proposing the care and treatment, you’re responsible for ensuring appropriate capacity assessment • It is for you to consider whether you have reasonable grounds to believe that P lacks capacity to consent, and whether you can proceed on a best interests’ basis • Secure protection by evidencing your efforts/ reasons

23. Three: promote planning A person’s next of kin can make decisions for them if they are unable to make those decisions for themselves. True or false?

24. Three: promote planning • Take opportunities to actively promote planning and advance decision making - particularly where P might lose capacity in future • Forward planning includes creating Lasting Powers of Attorney (LPAs) for health and welfare and/ or property and finances, advance decisions and advance statements • LPAs can be executed at: https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney • Advance decisions or statements can be made at: https://mydecisions.org.uk/dashboard • After the opportunity to forward plan has passed, make P’s appropriate family members, friends etc aware of the deputyship option and direct them towards the guidance available at: https://www.gov.uk/become-deputy • Ensure you understand the nature and effect of these documents and how they apply to your area of work

25. Four: proactively recording capacity “Reasonable belief” in lack of capacity must be must be established beyond reasonable doubt before care and treatment can proceed in best interests. True or false?

26. Four: proactively record capacity • The law requires that people give consent to care or treatment, which must be voluntary, informed, capacitous • The MCA provides that a person must be assumed to have capacity to consent unless established that he lacks it • If you’re relying on the statutory presumption, say so e.g.: “During my time with Mrs X on 24th April at 9:30am for the purpose of an assessment of her care and support needs, nothing occurred which (in my professional opinion) justifies departure from the presumption of capacity within s1(2) of the MCA” • Don’t hide behind the presumption of capacity to avoid making an appropriate capacity assessment • When considering capacity, remember it’s decision and time specific: what is the decision to be taken? When? • Clearly record your assessment

27. Five: supported decision making When you are supporting a person to make a decision, you will need to be clear what the person needs to understand to make the decision. True or false?

28. Five: supported decision making • The MCA provides that a person is not to be treated as unable to make a decision unless all practicable steps to help him/ her to do so have failed • The MCA requires you to consider and make all reasonable adjustments that would allow a person to make their own decisions • The person may need • more time to decide • to consider the decision at a different time • to receive the information in a different way (format, aids to communication etc) • to be supported by family members • to be support by an advocate (even if statutory triggers don’t apply) • The involvement of individuals in the decisions which affect them is fundamental to participation in society and to social inclusion • Efforts should be proportionate to the decision and circumstances • Evidence the efforts you have made

29. Six: identify/ evidence decision maker An attorney appointed under a health and welfare LPA has no authority to make personal welfare decisions which the donor (the person who appointed them) has capacity to make for themselves. True or false?

30. Six: identify/evidence decision maker • For as long as P has capacity to make his own choices, care and treatment decisions require his consent – P is the decision maker • If the individual lacks capacity to consent (or refuse) care and treatment, consent must be sought from anyone appointed under the MCA to make such decisions on their behalf. Where an attorney or deputy has been appointed to make the decision in question, they are the decision maker • Alternatively or additionally, where P has made a valid and applicable ADRT, P has effectively already made their decision • Where there is no appointed decision maker (or relevant ADRT), the person proposing the care and treatment will be the decision maker, and they will need to consider whether a CoP application is necessary or reliance on the MCA’s s5/ 6 is appropriate • Decision makers can only act in accordance with the document appointing them – ENSURE YOU HAVE SEEN IT/ TAKE A COPY • Ensure appropriate records are accessible in an emergency - it may not be possible to wait

31. Seven: best interests decision making ‘Best interests’ is not defined in the MCA. True or false?

32. Seven: best interests decision making • The better the application of the MCA, the fewer best interests decisions will be required • The purpose of the best interests test is to consider matters from the person’s point of view • The best interests process is one of constructing a decision on behalf of the person who cannot make that decision themselves • A physical meeting isn’t always required – it is recommended where there is dispute or complexity • The duty of the decision maker is to consult – not seek permission • Ensure consideration of all aspects of s4 • Don’t overlook consideration of the less restrictive option • A decision about what options are available to the person is not a best interests decision (as opposed to what to accept) • Record your considerations/ reasoning/ decision

33. Eight: deprivation of liberty The state has no responsibility for any deprivation of liberty arising from care and treatment that is privately commissioned/ arranged. True or false?

34. Eight: deprivations of liberty • The MCA s5/6 provides a defence for restraint/ restrictions (if necessary to prevent harm to P, andif proportionate to the likelihood and severity of harm) – but not a deprivation of liberty (DoL) • Deprivations are authorised via DoLS (standard settings) and the Court of Protection (non-standard settings and 16-18 year olds) • A DoL has 3 elements – • the objective element of confinement in a particular restricted place for a non- negligible period of time (the “acid test”) • the subjective element of lack of valid consent to that confinement; • the attribution of responsibility to the state • Ensuring access to ECHR is everyone’s responsibility • Raise a suspected unauthorised DoLwith a) P’s key worker (if that’s you – with your supervisor), or b) the DoLS Team • Some of you may receive email from DoLS Team. Guidance at: http://www.focusadultsocialwork.co.uk/nondols/

35. Nine: training Where it finds the MCA has been breached, the CQC can set compliance or improvement actions, serve a warning notice about failure to comply, or take enforcement action under the Health and Social Care Act 2008. True or false?

36. Nine: training • Have an MCA training plan with detailed programme of delivery in place, review regularly, and amendwhere required to take account of change to law and practice • All relevant staff undertake MCA training commensurate with their role in line with the National Mental Capacity Forum’s MCA Competency Framework http://www.ncpqsw.com/publications/national-mental-capacity-act-competency-framework/ • Training should not be online/ DVD only (but may supplement) • All relevant staff continue to maintain their knowledge of, and ability to apply, the MCA - refresh no less than annually • Audit effectiveness of training (CCG will audit training annually) • Training promotes legal, regulatory, professional standards: NMC: “keep to all relevant laws about mental capacity”; HCPC “practice within the legal and ethical boundaries of [your] profession” • How do you keep yourself up to date? http://www.39essex.com/resources-and-training/mental-capacity-law/

37. Ten: tools The decision maker is the person who is proposing to make a decision/ take a step on P’s behalf. The decision-maker can delegate to an expert the decision as to P’s capacity. True or false?

38. Ten: tools • Proactively recording capacity • Triggers and responses • Capacity assessment tools – short and long versions; which tool is the most appropriate will depend upon the circumstances under which capacity is assessed • Best interests decision tools – short and long versions; which tool is the most appropriate will depend upon the circumstances under which capacity is assessed • Best interests formal meeting guidance and template • Medication guidance • Tool are not a “straight jacket” • Tools are subject to change • NHSE prompts

39. Other areas for action • Young people aged 16 – 18 • Unwise decision making

40. Final plea…. • Lines of accountability and corporate responsibility for MCA matters must be clear, and appropriate governance arrangements in place to deliver best MCA practice • Operational procedures must be in place to ensure all relevant staff act in compliance with the MCA and policy • All relevant staff must be aware of their responsibilities with respect to the MCA, and understand when and how to apply it • Non-compliant MCA practice must be proactively identified and challenged both corporately and by staff individually, to secure individual and collective ownership of the MCA • Lodge generic MCA and DoLSconcerns on the portal at https://secure.yhcs.org.uk/soft-intelligence/nelccg/ or via NELCCG.askus@nhs.net

41. Thank you for listening! You can find the policy (and its tools) at http://www.northeastlincolnshireccg.nhs.uk/publications/