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Agenda Item No

 

The Vale of Glamorgan Council

 

Cabinet Meeting: 28 July, 2014

 

Report of the Cabinet Member for Adult Services

 

Deprivation of Liberty Safeguards

 

Purpose of the Report

1.         To update Cabinet on the implications of a Supreme Court Ruling in March 2014 regarding implementation of the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards 2009.

Recommendations

1.         That Cabinet notes the implications of the Supreme Court Ruling and the potential increased risk of legal challenge to local authorities.

2.         That Cabinet, when planning the budget for Adult Services, takes into account the increased financial liabilities placed upon the Council as a result of the Supreme Court Ruling.

3.         That Cabinet refers the report to Social Care and Health Scrutiny Committee for information.

Reasons for the Recommendations

1.         To ensure that Cabinet is aware that the Supreme Court Ruling extends the scope of the Deprivation of Liberty Safeguards, which means that a local authority has a duty to ensure that all care arrangements for people lacking mental capacity do not deprive anybody of their liberty without an independent legal process to authorise the care regime.

2.         To ensure that Cabinet is aware of the increased financial pressures upon the Council and upon Adult Services as a result of the Ruling.

3.         To ensure that this matter receives appropriate oversight and scrutiny.

Background

2.         The Deprivation of Liberty Safeguards set out a legal and procedural framework for authorising the care arrangements that deprive a mentally incapacitated person of their liberty where that care is determined as being in the person's best interests.

3.         The Cardiff and the Vale Deprivation of Liberty Safeguards (DoLS) Mental Capacity Act Team has been operational since these Safeguards were implemented in April 2009.  Its work has to comply with the Mental Capacity Act 2005 (MCA) and the DoLS Codes of Practice.

4.         The MCA/DoLS service is a partnership led and managed by the Vale of Glamorgan Council.  There is a tripartite management board with representation from Cardiff and Vale University Health Board, Cardiff City Council and the Vale of Glamorgan Council.

5.         The team provides coordination of Best Interest Assessments, advice and support to health and social care teams and training for Assessment Care Management Teams, CSSIW-registered care homes and all in-patient sites across the Vale of Glamorgan and Cardiff areas.

6.         The team currently comprises one full-time administrator and two full-time DoLS/MCA Coordinators.  They have access to 45 Best Interest Assessors from all 3 organisations (six in the Vale), who complete this work as part of their substantive roles.

Relevant Issues and Options

7.         On 19th March 2014, the Supreme Court passed judgement on two cases - MIG and MEG (Surrey) and P (Cheshire West) - overturning previous judgements by the Court of Appeal.  It published a revised test for deprivation of liberty which extended the protection of the Deprivation of Liberty Safeguards and the Court of Protection to a wider population of people being cared for in care homes, hospitals and within their own homes.

8.         The Supreme Court clarified that there is a deprivation of liberty for the purposes of Article 5 in the following circumstances:

·               The person is under continuous supervision and control; and

·               Is not free to leave.

9.         The Supreme Court also clarified that the purpose and relative normality of the care regime or the person's compliance or lack of objection to the care regime is not relevant when making a determination about deprivation of liberty.

10.      The Supreme Court held that a deprivation of liberty in domestic settings (such as Supported Living and Adult Placement), where the State is responsible for imposing such arrangements, must be authorised by the Court of Protection

11.      The effect of these changes provides a substantial increase in the number of people who require the protection of the DoLS or the Court of Protection.  

12.      In common with other local authorities, Adult Services in the Vale of Glamorgan have not been able to ensure that these arrangements have been put in place with immediate effect.  Since the Court ruling on 19th March 2014, the number of requests for authorisations has risen significantly.  The number in June 2014 was 224, compared to 12 in June 2013.  Finding the capacity needed to deal with the implications of the Ruling has proved equally problematic for the judiciary. 

13.      In these circumstances, a planned approach to implementation through appropriate prioritisation has been the only realistic option.  Additionally, Vale of Glamorgan staff have made representations through ADSS Cymru to ensure that the issues and the increased costs have been considered by Welsh Government.

14.      The DoLS team is jointly funded by the Vale of Glamorgan Council, the City of Cardiff Council and the Cardiff and Vale University Health Board according to the formula shown in Table 1 (based on predicted workload demand).  The cost of any additional resources in the DoLS team would be distributed across the three organisations.

Table 1

       Organisation

   Proportion

  Total Cost

Vale of Glamorgan

     14.65%

    £20,510

City of Cardiff

     40.74%

    £57,036

Cardiff and Vale UHB

     44.61%

    £62,454

 

15.      The number of people living in the Vale of Glamorgan whose care arrangement is potentially depriving them of their liberty as defined by the new test, will increase significantly under the Ruling.  Table 2 shows comparative figures between actual numbers for 2013/14 and predicted numbers for 2014/15, demonstrating the increase in the number of Best Interest Assessments needed. 

16.      The Vale of Glamorgan supervisory body is currently arranging care for 445 people in care homes and this prediction is based on that figure.  This prediction is based on 44% (Ref. McDonald 2007) of people in care homes being considered to be included under the new ruling.  Additionally, the local authority would need to make arrangements for residents who are self-funding because it remains the responsible supervisory body for them.  This has not been taken into account in the figures set out in Table 2 because we do not know how many of the 930 care home beds in the Vale the Vale of Glamorgan are occupied by self-funding residents.

Table 2

 

Organisation

Care Home

(2013/14)

Hospital

(2013/14)

Care Home

(2014/15)

Hospital

(2014/15)

Vale of Glamorgan

8

0

196

0

City of Cardiff

20

0

594

0

Cardiff and Vale UHB

0

63

0

480

 

17.      The implications of this rise in demand in terms of staff time are considerable.  The partnership has recently trained an additional 28 Best Interest Assessors (BIAs) to undertake DoLS assessments as part of the Cardiff and Vale rota.  The rota will be revised so that each BIA will undertake an average of 15 assessments per year.  As each assessment can take up to 8 hours to complete, this will have a significant impact on their ability to undertake their substantive role.  Consequently, the remaining 900 DoLS assessments per year will need to be undertaken by the DoLS team.

18.      By making other savings and in partnership with Cardiff Council, the Adult Services Division in the Vale of Glamorgan has provided funding to employ one extra Best Interest Assessor to work within the DoLS team.  We are waiting confirmation from the Local Health Board that they will provide funding for another Best Interest Assessor.

19.      The DoLS process requires an assessment by a specially trained medical practitioner.  The additional cost of commissioning this resource is considerable, as shown in Table 3 below.

Table 3

 

No. of Section 12

Assessments

Total Cost

to Authority

Cardiff

594

£108,108

Vale of Glamorgan

196

£35,868

Cardiff and Vale UHB

480

£87,360

 

20.      Following a prioritisation exercise undertaken by Cardiff Learning Disability services and Vale Learning Disability services, we have identified a number of people living in supported living or adult placement without capacity to consent to their care where the care regime may constitute a deprivation of liberty, as shown Table 4.

        Table 4

Area

Number of Supported

Living Places

Total number of

people requiring DoLS @ 50%

Total number of people requiring DoLS @ 80%

Cardiff

345

172

276

Vale

168

81

135

 

21.      It should be noted that people living in supported accommodation stand outside the Deprivation of Liberty Safeguards, so care managers/care coordinators for all identified individuals should consider an application to the Court of Protection for authorisation of the care regime.  Each service area is undertaking a review of all relevant cases and prioritising applications accordingly.  The Supreme Court's decision is also seen as applying to situations where the person without capacity lives at home in circumstances which fall within the definition in paragraph 7.  Where the Authority is providing care at home that amounts to deprivation of the person's liberty, this must be approved by the Court of Protection.

Resource Implications (Financial and Employment)

22.      The total additional recurrent costs for the Vale of Glamorgan of all these measures is likely to be £250,000, as demonstrated in Table 5.

Table 5

Additional Service

Cost

Contribution to Best Interests Assessment

£11,720

Cost of Section 12 Doctor Assessments

£35,868 est.

Cost of 135 additional Court of Protection applications (based on an uncontested hearing)

* Costs for contested hearings will be considerably more

£202,500 est.

Total Potential Cost

£250,088 est.

 

23.      The local authority is at risk of legal challenge where we provide or commission social care that amounts to an unauthorised or incorrectly authorised deprivation of liberty.  Recent advice from Weightmans state that damages for unlawful deprivations can amount to sums in the region of £180 to £300 per day.

Sustainability and Climate Change Implications

24.      There are no sustainability or climate change implications identified.

Legal Implications (to Include Human Rights Implications)

25.      Article 5 of the European Convention on Human Rights states that 'Everyone has the right to liberty and security of person,' and that 'No one shall be deprived of his liberty', save for criminal proceedings and the Mental Health Act 1983.

The Mental Capacity Act 2005 (MCA)

26.      The MCA sets out five principles that all health and social care professionals should have a mind to at all times when considering, planning and providing care and/or treatment to any person.

·               A person must be assumed to have capacity unless it is established that he/she lacks capacity

·               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 been taken without success.

·               A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision

·               An act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in his/her best interests.

·               Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

The Deprivation of Liberty Safeguards (DoLS)

27.      In 2009, the Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 to provide an additional legal framework which allows proportionate restraint and restrictions to be used on a patient (who lacks mental capacity) in a hospital or a resident of a care home - but only if they are in a person's best interests.

28.      If the restrictions and restraint used will deprive a person or their liberty, this is unlawful, unless authorised by the Supervisory Body or Court of Protection.  These are called the Deprivation of Liberty Safeguards.

29.      The DoLS introduce the legal concept of the Managing Authority (Care Homes and Hospital Wards) and the Supervisory Body (Local Authorities and Health Boards) that have the power to authorise a Deprivation of Liberty further to a Best Interest Assessment.

30.      Where a managing authority (Hospital Ward or Care Home) thinks it needs to deprive someone of their liberty to provide care or treatment they have to ask for this to be authorised by a supervisory body (LHB or Local Authority).  They can do this up to 28 days in advance of when they plan to deprive the person of their liberty.

31.      A Managing Authority can make an Urgent Authorisation themselves, which lasts for seven days and must always be followed by a Standard Authorisation.  The timescales for the Best Interest Assessment are reduced to 7 days.

32.      The supervisory body appoints Best Interest Assessors to see if the conditions are met to authorise the person to be deprived of their liberty under the safeguards.  They include:

·               the person is 18 or over (the jurisdiction of the Court of Protection incudes case where the person is aged 16 years and over);

·               the person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment - there is a separate test for this;.

·               the restrictions would deprive the person of their liberty;

·               the proposed restrictions would be in the person's best interests; and

·               whether the person should instead be considered for detention under the Mental Health Act.

33.      If any of the conditions are not met, the deprivation of liberty cannot be authorised.  This may mean that the care home or hospital ward has to change its care plan or alternative care must be found.

34.      If all conditions are met, the supervisory body must authorise the deprivation of liberty and inform the person and managing authority in writing.  It can be authorised for up to one year.  Standard authorisations cannot be extended.  If it is felt that a person still needs to be deprived of their liberty at the end of an authorisation, the managing authority must request another standard authorisation.

35.      Safeguards include the right to representation and rights to challenge authorisations in the Court of Protection without cost and access to independent mental capacity advocates (MCAs).

Crime and Disorder Implications

36.      There are no crime and disorder implications identified.

Equal Opportunities Implications (to include Welsh Language issues)

37.      The positive interpretation of the revised test for Deprivation of Liberty protects every person's rights as defined under Article 5 of the European Convention on Human Rights.

Corporate/Service Objectives

38.      Not Applicable.

Policy Framework and Budget

39.      This is a matter for Executive decision.

Consultation (including Ward Member Consultation)

40.      This is an issue which affects all areas of the Vale of Glamorgan.

Relevant Scrutiny Committee

41.      Social Care and Health

Background Papers

None

 

Contact Officer

Lance Carver, Head of Adult Services

 

Officers Consulted

Andrew Cole, Operational Manager for Mental Health Services, Vale of Glamorgan and Cardiff

Carolyn Michael, Operational Manager, Finance Services

 

Responsible Officer

Philip Evans, Director of Social Services

 

 

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