Gloucestershire Best Interests Assessors (BIAs) HR & Training Policy Mental Capacity Act 2005

Transcription

1 Gloucestershire Best Interests Assessors (BIAs) HR & Training Policy Mental Capacity Act 2005 AUTHOR: THERESA BATCHELOR DATE: FINAL

2 BIA HR & Training Policy Contents by Section Page 1. Introduction 3 2. Purpose 3 3. Scope 3 4. Definitions 4 5. Legal Context 4 6. BIA Specification 5 7. Continuing Professional Development 5 8. Public & Employers Liability Insurance 6 9. Line Management Arrangements Backfill Arrangements Performance Management Workforce Needs Training Implementation 8 8. Monitoring and Review 8 2

3 1. Introduction 1.1 This policy, jointly agreed by Gloucestershire County Council s Community & Adult Care Directorate and NHS Gloucestershire has been written in response to the changes to the Mental Capacity Act 2005 introduced by the Mental Health Act 2007 and the requirements of the Department of Health as issued in March 2009 (Gateway number 11240). Best Interests Assessors (BIAs) authorised within Gloucestershire have been required to complete assessed transition training approved by the Secretary of State, in order to be authorised as Best Interests Assessors from 1 st April From that date the Deprivation of Liberty Code of Practice applies and eligible professionals must attain the requirements as issued by the Department of Health and must undertake further and continuous training to maintain their approval by means of any relevant training and/or blended learning approved by the Supervisory Bodies. 2. Purpose 2.1 This policy aims to provide an equitable and consistent approach to the selection, approval and support of eligible professionals to become Best Interests Assessors operating within Gloucestershire and authorised by the two Supervisory Bodies, Gloucestershire County Council and NHS Gloucestershire. 3. Scope 3.1 These procedures will apply to the following staff seeking training and approval as Best Interests Assessors: Qualified social workers who are registered with the GSCC Qualified Nurses registered in Sub-Part 1 of the Nurses Part of the Register maintained under Article 5 of the Nursing and Midwifery Order 2001 Occupational Therapists registered in Part 6 of the Register maintained under Article 5 of the Health Professions Order 2001 Chartered Psychologists who are listed in the British Psychological Society s Register of Chartered Psychologists and who hold a relevant practicing certificate issued by that Society, Team managers of BIAs and professional leads for BIAs. 3.2 The policy also applies to the two Supervisory Bodies within Gloucestershire (Gloucester County Council and NHS Gloucestershire) along with their appropriate recruitment, training and HR departments and for the recruitment, training and HR departments of the 2gether NHS Foundation Trust and Gloucestershire Hospitals NHS Foundation Trust. 3

4 4. Definitions BIA means Best Interests Assessor, a statutory role within the MCA GSCC means the General Social Care Council. MHA means Mental Health Assessor MCA means the Mental Capacity Act 2005 MHA (1983) means the Mental Health Act PQ Graduate Specialist Award means the post qualifying award for BIAs as approved by the Secretary of State. 5. Legal Context 5.1 The Deprivation of Liberty Safeguards were added to the Mental Capacity Act (2005) in 2008 and can be found in Part 2, chapter 2, Sections 4A and 4B, and Schedules A1 and 1A of the Act. The purpose of the safeguards is to prevent breaches of the European Convention on Human Rights (ECHR) such as the one identified by the judgement of the European Court of Human Rights (ECtHR) in the case of HL V the United Kingdom. The Safeguards apply to people in England and Wales who have a mental disorder and lack capacity to consent to the arrangements made for their care or treatment, but for whom receiving care or treatment in circumstances that amount to a deprivation of liberty may be necessary to protect them from harm and appears to be in their best interests (Code of Practice 1.7). In order to come within the scope of a deprivation of liberty authorisation, a person must be detained in a hospital or care home, for the purpose of being given care or treatment in circumstances that amount to a deprivation of liberty (1.8). The Regulations state that the role of BIA can be undertaken by the following professionals (also see section 3.1): Approved Mental Health Professionals, Social workers who are registered with their appropriate registration body (in England this is the GSCC), First Level Nurses registered in Sub-Part 1 of the Nurses Part of the Register maintained under article 5 of the Nursing and Midwifery Order 2001, Occupational Therapists registered in Part 6 of the register maintained under article 5 of the Health professions Order 200, Chartered Psychologists who are listed in the British Psychological Society s Register of Chartered Psychologists and who hold a relevant practising certificate issued by that Society and is not suspended from the register or list relevant to the person s profession and has at least two years post registration experience in that profession. BIAs must also have up to date CRB clearance. Clearance should be in accordance with the originating employer s policy on safer recruitment and meet the provisions and requirements of the guidance from NHS employers and the NHSLA. Specifically disclosure must be at enhanced level and must be undertaken every three years. Checks must also be made of the appropriate Barred Lists as guided by the Independent Safeguarding Authority. 4

5 5.3 The Supervisory Bodies, as commissioning bodies for care homes and hospitals in Gloucestershire (Jones 2-010), must be satisfied that a prospective Best Interests Assessor has successfully completed a course of study approved by the Secretary of State, that they have attended all the required teaching provided by an approved university, or by its approved provider and achieved a satisfactory standard in all the required assignments and / or examinations. The Supervisory Bodies may require an assessor to have skills or experience not listed in the regulations to satisfy themselves that a BIA meets their additional requirements. The Supervisory Bodies may set local standards, but the regulations have set the minimum national standard as described above. In the 12 month period beginning with the date the person has successfully completed the training the supervisory body must be satisfied that the person has, in the 12 months prior to selection, completed further training relevant to their role as a best interests assessor. 6. The BIA Role Specification 6.1 The BIA is responsible for conducting a range of assessments to ascertain whether an authorisation for deprivation of liberty will be granted (see The Deprivation of Liberty Safeguards Interagency Policy and Procedures section 4). Chapter 4, section 4.13 of the DoLS Code of Practice and section 6.4 of the aforementioned policy identify how assessors will be selected to carry out specific assessments. (see Appendix 1) 7. Continuing Professional Development 7.1 The Supervisory Bodies will ensure that relevant ongoing training opportunities are available to all BIAs. This will enable them to keep abreast of current developments and ensure that their practice is Evidence Based whilst contributing to the Continuing Professional Development requirements of their respective registration bodies. 7.2 BIAs will be able to access joint training with partner agencies on practice related to the interfaces between the Mental Health Act 1983 (amended 2007) and the Mental Capacity Act (2005). 7.3 BIAs will be provided with a copy of Deprivation of Liberty Safeguards Code of Practice and the Mental Capacity Act Code of Practice, along with hard or electronic copies of all required standard forms. 7.4 The Supervisory Bodies, through the DoLS Service, will be responsible for ensuring that: a) Bi monthly BIA meetings, adopting Action Learning Principles are held where: i) anonymised cases can be discussed and learning can be shared ii) current research, literature, case law and relevant regional & national news can be disseminated 5

6 iii) There is ongoing training relevant to the Deprivation of Liberty Safeguards including DoLS specific & DoLS related training. 7.5 BIAs will be made aware of e-learning which is available on the Mental Health Act, the Mental Capacity Act, DoLS and the interface between the Mental Health Act and the Mental Capacity Act. 7.6 BIAs are themselves responsible for ensuring that they attend a minimum of 3 BIA meetings each year and also attend an annual Deprivation of Liberty Workshop 7.7 All BIAs will be subject to a contract for which they will receive remuneration (see attached Appendix 2). This is intended to reflect their commitment to the functions. This contract will be reviewed annually and may be subject to amendments as agreed by the Supervisory Bodies. 8. Public & Employers Liability Insurance 8.1 The Supervisory Bodies have a responsibility to ensure that appropriate insurance is in place for BIAs undertaking their role under the DoLS process. Where an NHS Trust directly employs BIAs and MHAs they will be covered for their role whether they are providing an assessment for their employing trust, another NHS trust or a Local Authority, provided that they do so in accordance with their NHS employment and are performing a healthcare function. If a formal agreement is in place with a Local Authority in accordance with Section 75 of the NHS Act 2006, NHSLA Schemes will respond, provided that the assessment is carried out by an NHS employee in the course of their employment. Staff employed by a Local Authority will not benefit from NHS Indemnity. GCC BIAs are appropriately covered for any work they are required to undertake for or on behalf of the Council in respect of MCA/DoLS, regardless of where the work is undertaken. BIAs & MHAs working as independent practitioners are not covered by NHS or LA indemnity and would need to take out their own professional indemnity insurance. Currently there are no independent BIAs in Gloucestershire. 9. Line Management Arrangements 9.1 Line management arrangements and responsibility for supervision of the BIA s substantive role will remain with the line manager from their substantive team. The DoLS Lead will, however, provide professional supervision with regard to any work undertaken as a BIA and will provide at least one formal supervision session per year to each BIA. 6

7 9.2 It is acknowledged that it may be difficult for an employee s line manager to deal with performance concerns in respect of the BIA role; there is therefore a role for the DoLS Service Lead to assist where required. 10. Backfill Arrangements 10.1 The Supervisory Bodies will provide backfill funding through the DoLS Service to the BIA s employing organisation to facilitate reasonable release from duties under their contract of employment in order to undertake BIA duties. The amount of hours work undertaken by the BIA in completion of a DoLS assessment has been commuted to an average of 8 hours in line with DoH guidelines and a set amount has been agreed to cover these hours. The employing authority should submit an invoice to the DoLS Service for reimbursement. 11. Performance Management 11.1 BIAs will have the opportunity though formal and professional supervision to receive feedback on the assessments they have completed. The DoLS Lead will monitor the quality of BIA assessments Monitoring of BIA s availability to carry out the BIA role will take place as part of the DoLS Service s commitment to provide BIAs in a timely way when applications have been received Any allegations of misconduct or capability and performance will be referred to the BIA s employer and will be dealt with through the disciplinary procedure of the employing organisation Any issues that require to be referred to the professional body such as the NMS or GSCC will be referred using the employer s policy for referral to professional bodies. 12. Workforce Needs 12.1 The DoLS Service Lead will identify when and in what professional fields, further BIAs are needed, and will contribute to workforce planning for this statutory role. This may also include a reduction in the number of contracted BIAs if numbers & skills don t match demand. Identification of a need for further BIAs will be approved by the Supervisory Body Prospective BIAs will be subject to an interview process, must attend training as set out in section 5.3 and successfully complete this course with a pass at a level set by the relevant University It is recognised that social workers, nurses, occupational therapists and chartered psychologists who have completed training as an Approved Mental Health Professional under the Mental Health Act 1983 (amended 2007) will be 7

8 qualified and eligible to practice as BIAs. Similarly social workers and other professionals who undertake the post qualifying award in social work with Adults may also be eligible to practice as BIAs. In both cases, these professionals will not automatically be included on the list of practicing BIAs and would need to be approved by the Supervisory Body in the event that additional BIAs are required. They would however, be approached in the first instance in the event that the number of existing Best Interests Assessors reduces and more are needed to meet the needs of the Supervisory Bodies. However, to ensure that the needs of the Gloucestershire Supervisory Bodies can be met at all times, professionals who have successfully passed the requisite training but who are nor approved at that time, will be eligible to continue their professional development in this area as identified in 6.1, to ensure that they retain the relevant values, knowledge and skills to undertake the role when required. 13. Training Implementation The Annual Training plan for DoLS and for ongoing BIA training is being implemented within Community & Adult Care Directorate of Gloucestershire County Council and will form part of an overall Safeguarding Adults training strategy which will also include training for the Safeguarding Adults Unit Protection Unit. 14. Monitoring and Review The policy will be monitored by the DoLS Service Lead, the Supervisory Bodies and workforce development leads in consultation with the Training Lead and HR. A review will be carried out on an annual basis. Theresa Batchelor DoLS Lead February

9 Appendix 1, Gloucestershire Best Interests Assessors (BIAs) HR & Training Policy, Mental Capacity Act 2005 Taken from The Deprivation of Liberty Safeguards Interagency Policy and Procedures (2009) 6.4 Assessment process for a Standard Authorisation See Appendix B Allocation of DoLS Assessors: The DoLS Lead will be responsible for appointing the Mental Health Assessor and BIA. The choice of Assessor will be governed by: i) ensuring compliance with regulations ii) knowledge of the relevant person iii) skills and specialist knowledge for the relevant persons needs iv) expedience of resources Taken from the Deprivation of Liberty Code of Practice (2008) How should assessors be selected? 4.13 The six assessments do not have to be completed by different assessors. In fact, it is highly unlikely that there will be six separate assessors not least because it is desirable to minimise the burden on the person being assessed. However, each assessor must make their own decisions, and to ensure that an appropriate degree of objectivity is brought to the assessment process: there must be a minimum of two assessors the metal health and best interests assessors must be different people the best interests assessor can be an employee of the supervisory body or managing authority, but must not be involved in the care or treatment of the person they are assessing nor in decisions about their care a potential best interests assessor should not be used if they are in a line management relationship with the professional proposing the deprivation of liberty or the mental health assessor none of the assessors may have a financial interest in the case of the person they are assessing (a person is considered to have a financial interest in a case where that person is a partner, director, other office-holder or major shareholder of the managing authority that has made the application for a standard authorisation) an assessor must not be a relative of the person being assessed, nor of a person with a financial interest in the person s care. For this purpose, a relative is: 9

10 a. a spouse, ex-spouse, civil partner or ex-civil partner b. a person living with the relevant person as if they were a spouse or a civil partner c. a parent or child d. a brother or sister e. a child of a person falling within definitions a, b or d f. a grandparent or grandchild g. a grandparent-in-law or grandchild-in-law h. an aunt or uncle i. a sister-in-law or brother-in-law j. a son-in-law or daughter-in-law k. a first cousin, or l. a half-brother or half-sister. These relationships include step-relationships where the managing authority and supervisory body are both the same body (see paragraph 3.21), the supervisory body may not select to carry out a best interests assessment a person who is employed by the body, or providing services to it, and the supervisory body should seek to avoid appointing assessors in any other possible conflict of interests situations that might bring into question the objectivity of an assessment. 10

11 Appendix 2, Gloucestershire Best Interests Assessors (BIAs) HR & Training Policy, Mental Capacity Act 2005 Draft Offer Letter for BIA NAME ADDRESS Dear [Name], Offer to undertake Best Interest Assessor Duties Further to previous discussions I am pleased formally to offer you the opportunity to undertake a BIA role (which will operate in addition to your current contract of employment) for the fixed-term period ending --/--/--. It may be possible at a later point to offer to extend this period but this will be subject to an evaluation of the demand patterns for this new service and also consideration of the skills mix of the staff groups from whom the BIA s are drawn. The duties and responsibilities of a BIA are as set out in the enclosed Role Profile. Remuneration for these duties is made through payment of a flat-rate BIA Allowance, which for is set at 1,200 (pro-rata for part-time). This rate will be increased annually in line with the local government national pay award. As you have previously committed your time to undertaking the BIA training the Allowance will be payable from 1 st April 2009 and you will receive the appropriate back pay with your next salary payment (or the following salary payment in the event that the agreement is confirmed after the payroll shut down date, which is normally the middle of the calendar month). Please note that acceptance of this offer will be conditional on your having obtained the prior agreement of your line manager to allow your reasonable release from your normal duties in order to undertake BIA work, in recognition of which the appropriate backfill funding will be made available to your employer. This offer is also subject to your agreement to the terms and conditions relating to payment of the BIA Allowance, as set out in the enclosed document. If you would like to accept this offer please could you confirm in writing or by to Theresa Batchelor at the above address. I look forward to hearing from you. Yours sincerely, 11

12 Terms and Conditions Relating to Payment of a BIA Allowance In consideration of the payment of a BIA Allowance the Best Interest Assessor agrees the following: 1. To be available to undertake BIA duties and complete assessments as and when requested to do so and within statutory timescales. 2. To undertake such training and development activities as may be directed by the Supervisory Body and to maintain appropriate activities in respect of Continuing Professional Development in accordance with the Gloucestershire BIA HR & Training Policy. 3. To adhere to the processes and procedures set out in statute and the Code of Practice. 4. To participate in a minimum of 3 BIA Forums per annum and in exceptional circumstances to attend the DoLS Service office to assist with the timely coordination of DoLS applications. In addition to the payment of the BIA Allowance Gloucestershire County Council undertakes as follows: 1. To provide appropriate opportunities for training to enable the continued effective delivery of the BIA role. 2. To provide backfill funding to the BIA s employing organization to facilitate reasonable release from duties under their contract of employment in order to undertake BIA duties. 3. To make available appropriate professional advice and guidance to support the effective delivery of the role by the BIA. Termination a) The Council reserves the right to terminate the BIA engagement and payment of the BIA Allowance by issue of one month s notice if in the Council s opinion the BIA has for whatever reason been insufficiently available to undertake their BIA duties, or for some other substantial reason deemed sufficient in the circumstances to warrant termination of the engagement. b) The BIA may terminate the engagement at any time by issue of one month s notice on expiry of which entitlement to the BIA Allowance will cease. c) The engagement may be ended only in exceptional circumstances with approval of the Safeguarding Operations and Development manager. d) Where the BIA engagement is for a defined fixed-term period it will end automatically on the designated date without requirement for the issue of notice. Miscellaneous In the case of absence on long-term sickness the Allowance will remain payable in full for the remainder of the month in which the absence commences and for three months thereafter. The Allowance will be payable at half-rate for the following three months at which point entitlement will cease until such time as the BIA duties may be resumed. Further information relating to employment and training are set out in the document BIA HR and Training Policy (as from time to time amended). 12