To: Directors of Adult Social Services For circulation to adult social service teams and appropriate partners. 14 January 2015.

Transcription

1 Office of the Chief Social Worker for Adults (England) 79 Whitehall London SW1A 2NS T To: Directors of Adult Social Services For circulation to adult social service teams and appropriate partners 14 January 2015 Dear Colleague, Mental Capacity Act 2005 and the vital role of social workers In August 2014 I wrote to social workers in England seeking views as to what we as a profession can do to realise improved awareness, understanding and practice of the Mental Capacity Act 2005 ( the MCA ). The many responses received were insightful and greatly appreciated. As promised, I have summarised these in annex to this letter. I am sure you will find it useful (as I have done) to reflect upon these with your teams. I would be grateful if you could forward this letter to your social work managers and teams. The responses highlight a genuine enthusiasm for the MCA and for a social care culture that reflects MCA values. They highlight the need to communicate the basics about the MCA to service users and their families; to demonstrate the value and use of the MCA in real-life situations; the importance of consultation with the carers and families of those who may lack capacity in producing a care plan; and the importance of practice-based training. The responses suggest that social workers are keen to promote the MCA among other professionals, including in the NHS, but need to be empowered and supported to do so was perhaps the most significant year for the MCA since the Act came into force. In March the House of Lords praised the Act as a visionary piece of legislation with the potential to transform the lives of many but highlighted that for many individuals who may lack capacity the empowering ethos has not been delivered. The rights conferred by the Act have not been realised. In the same month, the Supreme Court (ruling in the case of Cheshire West) provided an acid test for what constitutes a deprivation of liberty. As a result, there has been a more than eight-fold increase in the number of applications under the Deprivation of Liberty Safeguards (DoLS). I know many of you have been closely involved in responding to these developments and I hope you will accept my gratitude for your considerable efforts. I know that there is active consideration of the impact of this additional work, by the Department of Health, the LGA and ADASS The coming year will be critical if we are to maintain positive momentum and seize the opportunity presented by the House of Lords report and the Supreme Court judgment to realise real benefits for service users.

2 On the wider MCA, the Department and our system partners will be continuing to push ahead with the programme of work laid out in the Government response to the House of Lords; Valuing every voice 1. This will include forming a new National Mental Capacity Forum. This new Forum will bring together the widest possible stakeholder voice to inform Government policy but vitally, will focus the majority of its efforts on forging new collaborations across different sectors and professional groups, identifying actions that members of the Forum can pursue to improve implementation of the MCA. At the national level we shall: - Provide an accessible source of key MCA tools and information materials. This will be made available through a new online MCA Directory to be hosted by the Social Care Institute of Excellence. This will be ready by the end of February Highlight the importance of the MCA in social work training. You will be aware that last year I consulted on a draft Knowledge and Skills Statement (KSS) for social workers who have finished their assessed and supported year in employment (ASYE). We are currently analysing the responses to that consultation, but I can tell you now that a strong MCA element will be included in the final statement, which should be published before the end of February. I do believe that improved implementation of the MCA will be driven primarily by local, tailored action and by local multi-agency collaboration. I would therefore urge you to ensure that the MCA is a regular agenda item for your team and senior management meetings. Through the new National Mental Capacity Forum we shall be in a position to better circulate national updates and facilitate peer-to-peer learning. I would encourage you to engage with this new forum. Regular updates on all MCA-DoLS matters will be posted on Twitter by the Department s MCA-DoLS Policy Lead, Niall Fry. In terms of the Deprivation of Liberty Safeguards (DoLS), our challenge is to continue to negotiate the very significant number of DoLS applications (and indeed applications from community settings to the Court of Protection) while keeping true to the values of the MCA. In other words, putting the individual first and foremost and resisting any urge to treat DoLS as a bureaucratic tick-box exercise. Applied properly, DoLS can realise real benefits for vulnerable individuals. Niall Fry will be writing out to MCA-DoLS policy leads in local authorities with a detailed update shortly. This will include detail of the revised (and reduced) standard forms for making DoLS applications and also the imminent publication of a new Code of Practice for the Mental Health Act that includes a new chapter on the interface between that Act and MCA-DoLS. With a view to the MCA-DoLS challenge facing us all in 2015, I wish to invite expressions of interest in attending a Chief Social Worker s MCA Seminar on Friday 13 March 2015 in London. The purpose of the seminar is two-fold. First, I feel it will be valuable to share learning, best practice, and concerns/ challenges face-to-face. Second, I believe it will be valuable to share directly some of the recent MCA developments (including tools and guidance) and discuss how we can use these 1 2

3 to instigate local collaborations and improvements in application of the Act. I would welcome attendance from anyone with an interest in the Act from all professional groups, especially the NHS. If you would like to attend this event please chiefsocialworkerforadults@dh.gsi.gov.uk. Depending on demand we may need to randomly select attendees but please do get in touch. It would be very useful if, prior to your attendance at this event, you could consider and reflect upon the points noted in annex to this letter. Thank you for your continuing engagement and all you are doing in helping lead better implementation of the MCA. It has been heartening to hear from so many colleagues with a clear passion for the values of the MCA. Our challenge now is to reach out to colleagues, and across different organisations to spread understanding and hence realise real benefits for service users. Yours sincerely, Lyn Romeo Chief Social Worker for Adults (England) 3

4 Annex Common issues and themes raised by respondents The Chief Social Worker s letter of 12 August 2014, asked for the views of social workers on the Mental Capacity Act (MCA). Five questions were asked. A non-exhaustive summary of responses is provided below. 1. How can professionals best communicate the rights afforded by the MCA? How can professionals use the MCA to guide their interactions with service users? A cultural shift is needed whereby the MCA is used for promoting rights; rather than for defending practice We need to communicate the rights afforded by the MCA to service users and their family in simple language. E.g. through a specific information leaflet Professionals need to sell the positive aspects of the Act; that the MCA offers protection and transparency, it is not just a bureaucratic procedure Don t just give the MCA spiel use the key principles but relevant to the specific decision and circumstances at hand We should encourage forward planning Lasting Powers of Attorney (LPAs) but also broader early expression of wishes MCA information on local authority customer information website, public online access to social work procedures manuals Social workers need to promote the use of advocacy It is important that professionals communicate to service users and their family about when and why a capacity assessment is taking place ideally in advance and by letter together with information about what is to expect Knowledge of the individual and their circumstances prior to making a capacity assessment is important in making a good assessment. Developing and sustaining relationships is important. The biggest hurdle to assessing capacity is staff confidence and the incorrect belief there is someone out there better qualified. 2. When a care plan is being developed, what prompts or tips could assist social workers to ensure the principles of the MCA are followed? It would be useful to have a guidance sheet containing prompts about the MCA for reference when constructing a care plan Need a person-centred approach where the what s not working question leads to discussions on rights, choice and control. Having information about the MCA present for the individual and their family makes it clear social workers are working within a legal framework It is important to have close cooperation between the social worker putting together the care plan and the carer who has day-to-day knowledge of the individual and as such is wellplaced to help communicate their wishes and preferences. The social worker making the care plan is initially unlikely to have a clear understanding of the person 4

5 It is important to keep good records and evidence of the service-users ongoing care, and their values, beliefs, wishes and preferences. This helps to build a better picture when it comes to care planning/ review Useful to actively demonstrate when constructing a care plan how the individual has been involved (and supported to be involved) in the creation of their plan When signing off a care plan we check that capacity has been considered Care plans must ask assessors to record consent and where there is doubt over capacity should record the nature of the capacity assessment undertaken and outcome 3. What forms of MCA training are likely to be attractive to social workers? Social workers need more than a basic competency in the MCA. A greater number should be qualified Best Interest Assessors (BIAs) Training needs to be practical and focussed on real life situations. It should not be too theoretical or overly legalistic Specialist skills training in how to conduct mental capacity assessments and how to communicate with people to maximise their capacity An expectation that career progression is dependent on showing how professionals implement the MCA to a high standard. There is a responsibility for Higher Educational Institutions to firmly embed the MCA into their social work degrees. MCA should be included as a core part of the social worker training curriculum (undergraduate and postgraduate). Joint training for social workers, medical professionals but also other disciplines (e.g. police) helps to engender a shared understanding and multi-disciplinary working Need to incorporate the MCA into continuous professional development (CPD) Thoughts on attractive forms of training included: - Relevant to client group - Interactive - Contains time to reflect and try out learning - Includes on-going support from an MCA Champion focusing on practice - Provides clear guidelines - Provided within working environment - E-guides, creative tools - Competency based blended learning approaches - Should be part of induction training for new staff - How to be professionally assertive and confident with other professionals - Practical role play and job shadowing - Initial supervision of capacity assessments by more experienced staff - Feedback from audited files to identify good practice - For already skilled practitioners master classes to build on their expertise - Case law updates with the expectation that learning is then incorporated into supervision and case discussion within teams - Social work forums as CPD opportunities for case discussions on MCA issues - Particular lessons could be learned from speech and language therapists around communicating with people who have difficulty articulating their views 5

6 - Floorwalker that works alongside those who have received training back in their workplace to carry out self-audits and then share learning as part of a wider peer support network 4. Would you feel well placed as a social worker to highlight the importance of the MCA to other professionals? What might help? Social workers feel it is their role to be trailblazers for the MCA Social workers often have more MCA knowledge than other professionals Social workers already go to great lengths to put the individual s perspective at the forefront of decision-making. But a paternalistic approach in the wider system can be hard to shift Social workers advice is not always well received by other professionals; including for example in the NHS. Helpful if empowered to do so by senior staff If social workers are to play a lead role in highlighting the MCA to others then they need easy-to-access regular updates and core materials We must stress that all professionals have an MCA responsibility; this should not be left to social workers alone Court of Protection uses psychologists and psychiatrists as expert witnesses. Social workers need to build to that expert witness level because their practice in the field is unique We have a Quality Practice Standard specifically related to the MCA which sets out our expectation of social workers Part of being an effective social worker is to advocate for our customers and to challenge colleagues where their practice falls outside of thee Act You need to be a very strong social worker to challenge on behalf of vulnerable adults when you are surrounded by health professionals 5. Are there any other ways by which social workers could encourage a culture that better reflects the principles and values of the MCA? Every local authority should have an MCA Board on a statutory footing. This should not be an add-on to the safeguarding board. It should include service users, professionals, independent community members Senior social work managers must lead by example and ensure that better MCA implementation is on the agenda of relevant meetings Practice will evolve as social workers begin to practice more bravely under the MCA (and are backed to do so by senior colleagues) Confidence is probably an issue for some who may want to cover themselves. So we need to have clear positive risk taking policies. And we need support from managers to ensure professionals do not become too risk averse Be clear: we are working for ordinary lives not super-safe lives or difficulty-free lives Could use the multi-agency partnerships at Safeguarding Adult Boards to promote a better culture of understanding of the MCA principles 6