Sheffield City Council Review of Deprivation of Liberty Safeguards Practice in relation to Mr RK

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1 Sheffield City Council Review of Deprivation of Liberty Safeguards Practice in relation to Mr RK The following review has been compiled following a report of the Parliamentary and Health Service Ombudsman into a Sheffield resident referred to here as Mr RK. The matter was referred to the Ombudsman by his brother referred to here as Mr TK. In so doing this review will provide an up to date position with regard to Sheffield City Council compliance with the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DOLS). This review will demonstrate the strengths and areas in need of improvement. The information below must to be read in conjunction with the Ombudsman s report regarding Mr TK on behalf of Mr RK. Evaluation of the Ombudsman s finding Mr RK lived with his brother Mr TK and their cousin. He became ill in 2009 with Alzheimer s and Diabetes and required medical treatment. A number of agencies were involved with his care including bodies in Derbyshire because he lived on the Sheffield/ Derbyshire border. These bodies were Chesterfield Royal Hospital NHS Foundation Trust, North Derbyshire Clinical Commissioning Group and Derbyshire County Council. The other body cited in the report was Mr RK s GP surgery the Moss Valley Medical Practice. The Ombudsman found that Mr TK had made clear his desire for his brother Mr RK to return home and that this was Mr RK s stated wish. Mr RK was treated in a number of care settings and passed away in a care home in December The Ombudsman s finding is that all five bodies were responsible for service failure in not making it possible for Mr RK to return home. There is no evidence to suggest that Mr RK was at any time compliant to living in a care home. Indeed the available evidence suggests that he objected and frequently stated that he wanted to go home. Likewise his Brother, Mr TK also requested his discharge home. Without a process of law, refusing this request is a likely to breach European Convention of Human Rights - article 5 (right to liberty) and article 8 (right to family and private life). A person lacking capacity with regard making decisions about their need for care and accommodation may be deprived of their liberty only if: It is to prevent a person from a risk of serious harm. The measures taken are proportionate to the risk It is the least restrictive option To do so is in the person s best interests

2 Compliance to the Mental Capacity Act must begin with the relevant assessment of capacity. Assessing capacity should have been routine to any initial assessment. This was not the case, and was evidentially an afterthought. Whilst the Ombudsman gave some mitigation to the fact that 2009 was the inaugural year of DOLS. The Mental Capacity Act (2005) was implemented in 2007 consequently assessing capacity should have been embedded into practice. Dependent on the outcome of a capacity assessment, approaches to care and support can vary from taking no further action to providing an intensive and restrictive environment. Therefore a capacity assessment is the foundation stone on which we build care plans and good practice. If there is a failure to get this right then anything done thereafter can breach a person s human rights or leave a person at significantly unacceptable levels of risk that they may not fully understand. To have not assessed Mr RK s capacity from the outset with regard to deciding about his care and choice of accommodation was poor practice. This contributed to the lack of any effective consideration of his best interests and ultimately an unauthorised deprivation of his liberty. It is unlikely when this first stage regarding capacity is not adhered to that there will be sufficient awareness of DOLS. It is the primarily responsibility of the managing authority (in this case the care home) to identify a deprivation of liberty. In the case of Mr RK a chance was regrettably missed. It is also the role of any third party to report any concerns they have that a person is or might be deprived of their liberty. This was incumbent to Sheffield City Council staff that visited Mr RK and were aware of his objection and that of his brother to remaining in the care home. There are numerous references in the records and cited by the Ombudsman that indicated the possibility of a deprivation of liberty. The DOLS supervisory body, Sheffield City Council were never at any time made aware of the circumstances. At the time of this case this function was carried out by the Council s Mental Capacity Act Support team. Had this matter been raised with the team it would have been pursued and the relevant assessments under the deprivation of liberty carried out. The transfer of care on October 21 st 2009 to Continuing Health Care funding meant that Sheffield City Council were no longer the decision maker as defined in 4.6 of the Mental Capacity Act. This hindered Sheffield City Council s own plans to facilitate a discharge home for Mr RK. It is to their credit that having decided it would be in Mr RK s best interests to return home, Sheffield City Council staff strived in the face of opposition from the other agencies to plan a package of care to support Mr RK at home. Had they made

3 appropriate use of the Mental Capacity Act and DOLS it would have provided the legal authority for action in Mr RK s best interests. Review of MCA DOLS compliance The supervisory body for DOLS is proactive in placing conditions on deprivations of liberty that ensure best interests are fully explored with view to subjects returning home. Recently there have been several instances where people have returned home from residential care as a result of DOLS authorisation questioning the original best interests decisions. It is regretful that Mr RK was not afforded the safeguards in this way. A review of figures for training for MCA DOLS around this period the records shows that in the year 09/10 over 2,000 staff had training on the Mental Capacity Act and Deprivation of Liberty Safeguards. (This figure refers to all relevant agencies). This training consists of face to face courses and e learning. Current practice development in the Mental Capacity Act and Deprivation of Liberty Safeguards Sheffield City Council has a well-developed process for accessing the Deprivation of Liberty safeguards. Referrals from care homes in 12/13 were 16 th highest and from hospital 12 th highest in all of England. The supervisory body which is part of the safeguarding office provide support, training and quality assurance in compliance to MCA DOLS. One of the ways support is provided is through the Safeguarding Office duty team, which includes advice on the Mental Capacity Act and DOLS. Detailed pro forma for assessing capacity are now provided for staff including a balance sheet for best interest decisions. Training offered includes: - Basic awareness sessions - A specific course for care homes - A half day master class for assessing capacity and making best interests and deprivation of liberty safeguard - E learning on both MCA and DOLS is available to all staff and through the website it can be accessed by members of the public. Work is also undertaken to promote the Deprivation of Liberty Safeguards in hospital and care home settings. A previous report evidencing this is included.

4 Sheffield City Council currently has a temporary post-holder working specifically in this area. There are regular items in the safeguarding newsletter and a poster was provided to all care homes highlighted the need to be aware of DOLS. Quality of current practice There is some good quality practice. However there is a need to improve how we evidence capacity assessments. Guidance has recently been issued to avoid stating opinion until the conclusion. Reiteration of the need to use quotes and observations. Likewise to use a balance sheet approach to best interests assessments. Giving clear indication what options were considered, justification of the chosen option and why others where ruled out. There has been some marked improvement in quality since the guidance and training was implemented. Conclusion Improvements in terms of Mental Capacity Act compliance since 2009 can be evidenced. Assessments of capacity are undertaken in a timelier manner. Best interest s decisions and meetings are routine. However, there is improvement required in terms of providing good quality assessments that evidence the decision. Whilst we can never be certain whether we still have unauthorised deprivations of liberty there is good awareness of DOLS amongst care home and staff members and there are instances where the need to use DOLS is picked up by reviewing social work and nursing staff. Since April of this year Sheffield City Council have assessed in excess of a 100 DOLS applications. The likelihood of similar situation occurring without capacity assessments and reference for the need for DOLS has been significantly reduced. There can never be total certainty that a situation like Mr RK will not arise again. Our scope of providing DOLS awareness to managing authorities has only extended to homes within Sheffield and we have relied on the host local authority to do the same for placements out of City. The key is for the reviewing agencies to be mindful of the indicators that could amount to a deprivation of liberty. Continued work and vigilance is required, for people lacking capacity to make their own decisions these are our most vulnerable service users.

5 Recommendations 1. Services managers and team managers need to ensure that assessments of capacity are undertaken where there is any element of doubt about a person being able to make a decision. 2. Quality assurance of these assessments should be undertaken routinely and assistance can be provided by the MCA DOLS Practice Development Manager as required 3. There is a need to ensure that all team managers and service managers attend training on assessing capacity and making best interests decisions as well front line staff who assess capacity who have not done so already. 4. Team mangers need to review in supervision with their team members whether they need refresher updates on the Mental Capacity Act and Deprivation of Liberty Safeguards. 5. Further work into care homes is required. Training to continue and visits to care homes who have high dependency residents where referral rates are low or non-existent 6. The contracting team needs to review and build in further MCA and DOLS compliance checks within their monitoring process of care homes. 7. An update is required on Deprivation of Liberty Safeguards statistics, general MCA compliance issues, and court challenges to be routinely reported up to relevant senior manager meetings. Gary Haigh; MCA DOLS Practice Development Manager, Sheffield City Council Appendix 1: Training figures Appendix 2: Assessment of capacity pro forma Appendix 3: Report Detailing the Outcome of the Deprivation of Liberty Awareness Project Appendix 4: DOLS position statement 12/13.

6 Appendix 1 Training Electronic learning - MCA/DOLS 2009/ people Contract with CQM learning MCA and DOLS half day training sessions for care homes 700 people Training courses on MCA and DOLS held by SCC / attendees / attendees / attendees

7 Appendix 2: Revised assessment of capacity pro forma I have revised the revised assessment of capacity documentation, in the light of the lack of evidence of information particularly in the crucial area of whether the person can weigh up I have devised a process similar to the balance sheet on best interests that request evidence Mental Capacity Act 2005 Assessment of capacity record For use in significant decisions that go beyond a person s daily routines This form is to be completed electronically. A copy must be retained. Name of person to be assessed: Date of birth: 1. What triggered the need for this assessment? 2. What is the nature of the decision? Please tick the category Change of Accommodation Providing, withholding or stopping serious medical treatment Giving Covert Medication Decision with clear legal aspect (Such as Court of Protection issues) Control of personal finances Dispute between Local Authority or Trust staff relating to a persons care or treatment Recurrent unsafe behaviour Safeguarding of Vulnerable Adults IMCA can still be instructed in cases even if the service user has family or friends providing it has been established that the person lacks capacity and is evidenced on this form. The IMCA service will require a copy of this assessment. Restriction of Free movement (including restraint (MCA Code of Practice 6:39-6:52) Other (please specify)

8 Mental capacity assessment (Attach any relevant documents) 3. Is there a permanent or temporary impairment of, or disturbance in, the functioning of the person s mind? 4. If no, then the person has capacity. If yes, record the nature of the impairment, and proceed to questions 4-7. Assessment of Capacity What is the extent of the person s impairment? Please tick as appropriate Permanent Temporary Fluctuation Is the person likely to regain capacity in the near future? YES/ NO / NOT KNOWN Can the decision be delayed? YES/NO Capacity test preparation Consideration of the area, ease, location and timing of the Capacity Assessment; Evidence/Comments Consideration of the communication method used; and other people s involvement in the Assessment

9 Consideration of cultural influences, or social context that may affect the person s ability to make an informed choice? 4. Can the person understand information about the decision to be made? (all reasonable steps must be taken to help the person to understand) Demonstrate whether the person can foresee the likely implications of the options Please add evidence to support your answer, including an indication of the steps that have been taken: 5. Can the person retain information long enough to make a decision? (Information need only be retained in the mind long enough to make the decision) Please add evidence to support your answer:

10 6. Can the person use or weigh the information in order to make the decision? Demonstrate whether the person can weigh up the likely consequences of the options. Please add evidence to support your answer, including an indication of the steps that have been taken:

11 Option 1 Weighed up Advantages/benefits (list below using direct quotes) Option 1 Weighed up Disadvantages/risks (list below using direct quotes) Option 2 Weigh up Advantages/benefits (list below using direct quotes) Option 2 Weigh up Disadvantages/risks (list below using direct quotes) Option 3 Weigh up Advantages/benefits (list below using direct quotes) Option 3 Weigh up Disadvantages/risks (list below using direct quotes) Add any further options discussed Provide a summary of the person s ability to weigh up the information

12 Communicate by any means? (Have specialists in communication been considered e.g. in cases of unconsciousness, coma, locked in syndrome) Please add evidence to support your answer, including an indication of the steps that have been taken: If the answer to questions 4 to 7 is yes then the person has capacity. Signed: Assessor: Organisation: Date: If the answer to any of questions 4 to 7 is no then the person lacks capacity to make that particular decision at that time, and the following points must be addressed: 8. Can the decision be delayed because the person is likely to regain capacity in the near future? 9. Is there a valid Advance Decision relevant to the decision? 10. Is there a Lasting Power of Attorney / Enduring Power of Attorney? 11. Is there an Independent Mental Capacity Act Advocate (IMCA)? 12. Is there a Deputy?

13 Appendix 3: Report Detailing the Outcome of the Deprivation of Liberty Awareness Project A project took place to raise awareness of Deprivation of Liberty Safeguards (Dols) within care homes in the Sheffield area. The outcomes of the project were as follows: Number of contacts: 32 different organisations were contacted, some having multiple care homes within the Sheffield area. Of those 22 were positively open to support, training and information. Those organisations offered support were contacted on multiple occasions. Different methods of contact were used; they were contacted via telephone, , face to face meeting and face to face training. Training Delivered: A three hour workshop was delivered to: S and S Health Care Two workshops were provided and a total of 11 people attended. A two hour workshop was delivered to: Redrose Care One workshop was provided and a total of 15 people attended. HC-One Two workshops were provided and a total of 27 people attended. Little Dale - Two workshops were provided and a total of 13 people attended. Hill Care One workshop was provided and a total of 3 people attended Broomgrove Trust One workshop was provided and a total of 9 people attended. Brancaster Care Homes One workshop was provided and a total of 11 people attended. Amocura One workshop was provided and a total of 11 people attended. Countrywide Care Homes On workshop was provided and a total of 7 people attended. Roseberry Care One workshop was provided and a total of 8 people attended. Sheffcare One workshop was provided and a total of 11 people attended. A one hour workshop was delivered to: Total West Ltd One workshop was delivered and a total of 3 people attended. A total of 129 people received training during this project. Units that did not respond: For the purpose of this project, the care homes were categorised as red, amber or green dependent on the risk of them having no or limited awareness of the Dols legislation and the risk of them not responding appropriately in a case where a Dol may be taking place. The size of the care home and client group supported was also taken in to account. The number of none responders or those not open to receiving support training and information is detailed below:

14 Red 11 organisations were in this category. Out of those 18% did not respond. Amber 10 organisations were in this category. Out of those 36% did not respond. Green 11 Organisations were in this category. Out of those 40% did not respond The main reasons for none responding were as follows: Too busy or heavy workload Already had training or feel that they know enough Employed by the council or NHS so believe that all systems are in place and no further knowledge needed. Of those who did not respond, I was able to send an detailing the support available and how to access the e learning training to all but 4 organisations. (1 amber and 3 green). This information was sent for future reference and in case the organisation realised after the project had ended that they did require information or support. Recommendations: More workshops to be provided for organisations. A number of the organisations that I visited said that they would have liked more workshops

15 Appendix 4: Annual statement and statistics for the Deprivation of Liberty Safeguards (DOLS) for 2012/13 Activity Table 1 Care Homes new assessments Year number of new assessments Number authorised Number not authorised 09/ / / / Table 2 Hospital new assessments Year number of new assessments Number authorised Number not authorised 09/ / / / Reassessments and Part 8 reviews Table 3 12/13 Reassessments in care homes 44 Part 8 reviews in care homes 6

16 Table 4 12/13 Reassessments in hospitals 7 Part 8 reviews in hospitals 19 Table 5 Total activity 12/13 hospitals 87 Care homes 111 Total combined work in hospital and care homes = 198 new assessments Key trends in care homes The Number of new assessment requests for care homes has increased slightly however actual number granted fell. They are very marginal figures and the trend for care homes has remained much the same. Key trends in hospitals After the significant increase in the number of applications in hospitals. from the previous year 11/12 the number of hospital assessment fell from 61 to 55 and the number actually granted fell from 35 to 23 on the previous year When looking at overall activity including reassessment and reviews we have a further fall in numbers from 235 in 11/12 up to 198 in 12/13.

17 The main reason is a number of longstanding DOLS during 12/13 ended and thus the number of on-going reassessment fell. In the context of new activity there were 7 less hospital assessment an increase of 3 care home assessment, no significant difference in activity. From October 13 An increase in activity based on previous year with a 100 assessments completed by the end of September. Court of Protection Cases 3 challenges to DOLS assessments in the first quarter of 13/14 were taken to the Court of Protection under section 21a of the Mental Capacity Act. The appeals have put further demand on supervisory body resources. Training The e learning for both introduction to the Mental Capacity Act and introduction to the Deprivation of Liberty Safeguards have been updated. Introductory face to face training continues with plans to target specific groups for example MCA in care homes. For experienced practitioners there is a master class on assessing capacity and making best interests decisions. This has now been expanded to a full day course to cover all the Mental Capacity Act and DOLS. All courses have regular dates throughout the coming year

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