Learning Disability Providers Network Meeting 15 th May 2014 Sector Developments

1. Learning Disability Providers Network Meeting 15th May 2014 Sector Developments

2. Deprivation of Liberty Safeguards On 19 March 2014, the Supreme Court handed down its judgement in the case of “P v Cheshire West and Chester Council and another” and “P and Q v Surrey County Council”. Important judgement in deciding if care arrangements amount to a deprivation of liberty Widened & Clarified Definition n.b. Supported Living Following the Supreme Court judgement on 19 March 2014, health and social care staff, and CQC inspectors, must be aware of how they should now judge whether a person might be deprived of their liberty. Extracted from CQC briefing for providers & inspectors

3. The Supreme Court has now confirmed that there are two key questions to ask: Is the person subject to continuous supervision and control? AND Is the person free to leave? (The person may seem happy to stay, but the issue is about how staff would react if the person did try to leave or if relatives/friends asked to remove them permanently. ) It is now clear that if a person lacking capacity to consent to the arrangements is subject both to continuous supervision and control and not free to leave, they are deprived of their liberty.

4. The Supreme Court ruled that the following factors are not relevant to whether or not someone is deprived of their liberty: • the person’s compliance or happiness or lack of objection; • 2. the suitability or relative normality of the placement (after comparing • the person’s circumstances with another person of similar age and • condition); or • 3. the reason or purpose leading to a particular placement providers should ensure that restrictions on the freedom of anyone lacking capacity to consent to them are proportionate to the risk and seriousness of harm to that person, and that no less restrictive option can be identified. Care Plan Evidence

5. Widening of scope: The annex to this guidance - the cases that were considered by the Supreme Court. These clarify for providers of care to people with learning disabilities the sort of situations that now may come within the definition of deprivation of liberty, but which might not have been recognised as such before the Supreme Court judgement.

6. In a hospital or care home: where it seems likely that a person is being deprived of their liberty, and this seems to be in the person’s best interests, a referral to the Local Authority deprivation of liberty safeguards team should be made by the provider. If they have not done so even after prompting, a third party, such as a CQC inspector, can contact the local authority directly. If it is apparent that a person lacking capacity to consent to a forthcoming admission to hospital or a care home might be deprived of their liberty, the provider must seek the authorisation in advance of that admission wherever possible. For all other settings, such as supported living, adult placement/shared lives or domiciliary care, the deprivation of liberty safeguards cannot be used, so an application must be made to the Court of Protection.

7. CQC inspectors must continue to expect providers to work within the law. In the very short term, however, while waiting for further national guidance, it will in many situations be sufficient evidence of providers’ attempts and intention to work within the changes brought in by the Supreme Court judgement if they can demonstrate that they are: • aware of the outline of the judgement, hence reviewing (where appropriate, with care managers or commissioners of their services) situations that might now be brought into the widened definition of deprivation of liberty. The purpose of this review is to assess if the restrictions can safely be reduced or the person’s capacity enhanced so that they can make relevant decisions for themselves; and • in discussion with commissioners of services, and as appropriate either liaising with the local authority supervisory body for the deprivation of liberty safeguards or seeking legal advice, as to how to ensure the protection of the human rights of vulnerable people who use services.

8. Surrey County Council (The Supervisory Body for DOLS in Surrey), is not able to give legal advice to Managing Authorities or other providers and neither can it advise, in the absence of a formal request for a DOLS authorisation, whether a person’s particular circumstances amount to a deprivation of liberty. • The DOLS processes and provisions have not changed as a result of this judgement and Managing Authorities should continue to apply to Surrey County Council in the usual way if they consider it necessary to deprive a person of their liberty in order to provide the accommodation, care, treatment or support assessed as necessary under the MCA. • In the light of the judgement, particular attention should be paid to • Whether the person lacks the mental capacity to decide about (consent to or refuse) the accommodation and support arrangements assessed to be necessary for them • Whether they are subject to continuous supervision and control by a third party (e.g. care / support workers) • Whether they are free to leave their accommodation • It is important that Managing Authorities do not make speculative applications for DOLS as a result of this judgement, and residents / patients are not subjected to unnecessary or avoidable assessments, which can be unsettling for them and their families. Applications for DOLS must only be made as a result of an MCA compliant and properly recorded, best interest decision for that person. Managing Authorities are reminded of their responsibilities and the guidance outlined in the DOLS Code of Practice. http://www.surreycc.gov.uk/social-care-and-health/adult-social-care/accommodation-and-residential-and-nursing-home-care/residential-and-nursing-home-care/mental-capacity-act-2005-deprivation-of-liberty-safeguards#Supreme Court

9. Draft Regulations – introduced last meeting Consultation on how Regulate/Inspect/Rate 9th April – 4th June Handbooks produced for each service type

10. Outlines New Approach – following consultation September publish final version October 14 Implementation Seen before

11. Key Lines of Enquiry – KLOE’s Standard across all inspections – relate to 5 areas Detail is in Appendix 1 Set of Mandatory KLOE’s used in all inspections Plus a minimum of 4 additional KLOE’s (based on intelligence) Prompts – descriptors inspectors will use to assess the service

12. Care Home

13. Community Adult Social Care Services

14. Ratings Developed characteristics to describe what good, outstanding, requires improvement and inadequate care looks like in relation to each of the five key questions. These are described in appendix B.

16. Not a checklist! Not exhaustive! “These characteristics should provide a framework which, together with professional judgement, will guide our inspection teams when they award a Rating” n.b. reference to guidance issued e.g. infection control Not every characteristic has to be present to award a rating! “if the impact on the quality of care or on people’s experience is significant, then displaying just one of the characteristics of inadequate could lead to a rating of inadequate” “In the same way, a service does not need to display every one of the characteristics of good in order to be rated as good. Even those rated as outstanding are likely to have areas where they could improve”

17. Other aspects: Intelligent Monitoring

18. PIR – Provider Information Return PIRs will be electronic forms that providers complete and submit on the internet. They will help us to understand the providers’ perspective and, when necessary, challenge it constructively. The PIR asks providers to give us key information for each of the five key questions

19. The additional information will be linked to each of the key questions and will include: • Information about the people using services – for example data about admissions, deaths, drugs and medicines, nutrition and hydration, who commissions their care, other services and professionals involved in their care, their ethnicity and diverse needs. • Information about staff – for example arrangements for their supervision and training, their ethnicity and diversity. • Information about the service – for example the registered manager, Statement of Purpose, involvement in initiatives or any awards for the quality of care and support provided, application of Mental Capacity Act 2005 policies and procedures.

20. Inspection Generally unannounced – but will ring small homes before setting off to make sure they are in Inspection frequencies From October 2014, the frequency of planned inspections will be linked to ratings as follows: • Inadequate within 6 months of the last inspection • Requires improvement within 12 months of the last inspection • Good within18 months of the last inspection • Outstanding within 24 months of the last inspection Will also still use responsive and follow-up inspections

25. New Guidance Some interesting key points in Creating a culture for change And innovation.

27. Looks at how PHB’s can improve the Lives of people with complex, long Term conditions. Links with CHC

28. Debbie Sorkin referenced at SCA Conference

30. New Skills for Care Guide

34. Being Piloted Works in the same way as CIS Not Accredited Responsibility of RM to QA