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Agenda Item No

 

The Vale of Glamorgan Council

 

Cabinet Meeting: 13th April, 2015.

 

Cabinet Member for Adult Services

 

Deprivation of Liberty Safeguards

 

Purpose of the Report

1.          To update Cabinet on the emerging implications for the Council of the Supreme Court judgement on the Cheshire West and Surrey cases in March 2014, which relates to the use of the Deprivation of Liberty Safeguards 2009, and the impact upon the Social Services Directorate's capacity to meet statutory obligations under the Safeguards.

Recommendations

1.          That Cabinet notes the emerging implications of the Cheshire West judgement in respect of arrangements for safeguarding vulnerable adults who are unable to consent to their health and social care arrangements and the increased risk to the Council of legal challenge where statutory timescales are not met.

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

Reasons for the Recommendations

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

2.          To ensure that the Social Care and Health Scrutiny Committee can continue to exercise oversight of the service and the risks to the Council.

Background

2.          The Cardiff and the Vale Deprivation of Liberty Safeguards/Mental Capacity Act (DoLS/MCA) Team continues to fulfil the Supervisory Body responsibilities required for DoLS on behalf of Cardiff and Vale UHB, City of Cardiff Council and the Vale of Glamorgan Council.  This is overseen by a partnership management board consisting of senior representatives from each Supervisory Body.

3.          On behalf of the three Supervisory Bodies, the team:

·             Coordinates DoLS assessments as requested by Managing Authorities by examining the following requirements in each case referred:

 

- Age - 18 and over

- Mental Health - Is a person medically diagnosed with a mental disorder?

- Mental Capacity - Does the person lack mental capacity to make the decision to be accommodated in the hospital or care home?

- No refusals - there is no decision previously made to refuse treatment or care, or conflict relating to this such as a Lasting Power of Attorney, an Advanced Decision or a nominated court appointed deputy.

- Eligibility - This determines whether the person meets the requirements for detention under the Mental Health Act 1983.

- Best Interests - The person needs to be deprived of liberty for reasons of health, safety and best interests.

 

·             Supervises and manages the workload of over 40 Best Interest Assessors;

·             Advises and supports health and social care teams across the sector in relation to MCA/DoLS issues;

·             Provides training for care homes and all in-patient sites across the hospitals of Cardiff and the Vale of    Glamorgan.

 

4.          The team is based in the Vale of Glamorgan and comprises:

·             1 full time administrator

·             2 full time DOLS/MCA Coordinators

·             1 full time Best Interest Assessor (started in November 2014)

·             0.5 Best Interest Assessor (started in January 2015)

·             40 Best Interest Assessors working on a rota basis (with 15 more trained in February 2015).

Relevant Issues and Options

5.          Since the Supreme Court ruling, the team has seen a 10 to 15 fold increase in the number of referrals, particularly from Care Homes.  It is notable that the number of referrals from hospital wards has not increased at the same rate.

6.          Table A shows the number of DoLS referrals per Supervisory Body:

REFERRALS (Table A)

2013/14

2014/15 (April 2014 to end Jan 2015)

% of the Team's Activity

Cardiff Council (Care Homes arranged by CCC)

32

640

48%

Vale Council (Care Homes arranged by VOG)

6

401

30%

C&V UHB (Hospital Wards)

55

285

22%

Total

93

1326

100%

 

7.          Table B shows the number of completed DoLS assessments per Supervisory Body.

 


ASSESSMENTS

(Table B)

Completed Assessments

% Activity

Outstanding Assessments

Cardiff Council

183

32%

457

Vale Council

119

21%

282

Cardiff and Vale UHB

267

47%

18

 

8.          Table B above shows the number of completed assessments and the number of DoLS Authorisation Requests that are outstanding.  Because the more unpredictable nature of hospital settings leads to a higher proportion of Urgent Authorisations, hospital-generated DoLS referrals are prioritised.

9.          Where a Managing Authority (Care Home for the Local Authority or Hospital Ward for the LHB) makes an Urgent Authorisation following a sudden and unforeseen event, they are in effect authorising themselves to deprive a person of their liberty for up to 7 days.  The Managing Authority must request a Standard Authorisation from the Cardiff and Vale MCA/DoLS Team at the same time as issuing their own urgent Authorisation.  The team then has 7 days to undertake a full DoLS assessment to consider an ongoing Standard Authorisation.

10.       Standard Authorisation requests are made where a Managing Authority has reason to believe that they are depriving a person of their liberty or will deprive a person of their liberty within the next 28 days.  The Supervisory Body then has 21 days to undertake a comprehensive DoLS Assessment to consider authorising the Deprivation of Liberty.

Damages

11.       The Supervisory Bodies are at risk of legal challenge for not complying with the statutory timescales within the DoLS process.  Essex County Council was recently ordered to pay damages of £60,000 following a breach of statutory timescales.

Team Capacity and Outstanding Assessments

12.       Table B shows that the Vale of Glamorgan Council is currently operating with 282 outstanding Standard Authorisation requests.  This is an unacceptable position. 

A breakdown of team demand and capacity is provided below:

·             Number of requests for DoLS Authorisations per month is between 150 and 200 per month.

- Each DoLS assessment takes between half and a full day to complete.

- Each DoLS assessment must then be authorised by a senior manager within the Supervisory Body (half-an-hour per authorisation).

·             Team Best Interests Assessors (BIAs) are currently undertaking approximately 60 to 70 DoLS assessments per month.

·             Rota BIAs are undertaking approximately 20 assessments per month.

·             A shortfall of between 50 and 100 DoLS assessments per month is leading to an increasing backlog of outstanding referrals.

13.       The team would require an additional two full time Best Interest Assessors to reduce the backlog of care home DoLS and to ensure compliance for all new DoLS Requests.  This would cost the Cardiff and Vale Local Authorities in the region of £60,000 and £40,000 respectively.

People Living in Domestic Settings

14.       Supported living arrangements provide care and support that may necessitate continuous supervision and control and require the person to live in a particular property where the support can be provided.  This would constitute a deprivation of liberty.  The table below sets out the number of such places in each local authority area.

 

Area

(Table C)

Total Supported Living places

Total number of people potentially deprived of their liberty

Cardiff

345

202

Vale

150

75

 

15.       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.  On the basis of legal advice, Cardiff and Vale Councils have identified a number of individual care arrangements (4 and 2 respectively) to take to the Court of Protection for consideration.

16.       The Court of Protection is experiencing significant challenges in hearing the increased volume of cases and it has recently revised application arrangements to speed up the process.

Resource Implications (Financial and Employment)

17.       The DoLS team is jointly funded by City of Cardiff Council, Vale of Glamorgan Council and Cardiff and Vale University Health Board according to the equation set out in the following table (which is based on predicted workload demand prior to the Cheshire West judgement).

Organisation

(Table D)

Equation

Total cost 2013/14

Vale of Glamorgan

14.65%

£20,510

City of Cardiff

40.74%

£57,036

Cardiff and Vale UHB

44.61%

£62,454

 

18.       The number of actual requests for DoLS Authorisations has increased at different rates as shown in Table A and B.  Thus far, the three Supervisory bodies have increased the budget for the team to fund the additional 1.5 WTE Best Interest Assessors, as indicated in Table D.  However, for the reasons outlined earlier in the report, this additional funding has not enabled the DoLS Team to keep up with the increase in DoLS Requests from the Care Home Sector.

19.       It is acknowledged that placements in the Care Home sector have grown by a higher rate than hospital beds, meaning that the original funding equation is outdated.  In order to meet the local authority's Supervisory Body legal obligations additional funding for Best Interest Assessors based in the DoLS Team needs to be considered by the DoLS Partnership Board. Adult Services in the Vale have committed to fund an additional Best Interest Assessor Post.

Section 12 Medical Examiner Assessments

20.       Each Deprivation of Liberty Assessment must be based upon the assessments (Mental Disorder and Eligibility) of a Section 12 Medical Practitioner; the Supervisory Body meets these costs.

21.       The additional cost of Section 12 doctor assessments are considerable, as is shown in the table below.

 

Table E

Referrals (Apr 14 to Jan 15)

Total Cost to Supervisory Body

Cardiff

640

£116,480

Vale of Glamorgan

401

£72,982

C&V UHB

285

£51,870

 

Sustainability and Climate Change Implications

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

Legal Implications (to Include Human Rights Implications)

23.       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.

24.       The Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards set out the legal framework whereby the local authority can authorise care arrangements that deprive a mentally incapacitated adult of their liberty as long as the care in the person's best interests and action should not otherwise be undertaken under the Mental Health Act 1983.

25.       Unauthorised care that deprives a person who cannot consent to the arrangement is unlawful.

Crime and Disorder Implications

26.       There are no crime and disorder implications identified.

Equal Opportunities Implications (to include Welsh Language issues)

27.       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

28.       Citizens of the Vale of Glamorgan are healthy and have equality of outcomes and, through appropriate support and safeguards, the most vulnerable members of our community maximise their life opportunities.

Policy Framework and Budget

29.       This is a matter for Executive decision.

Consultation (including Ward Member Consultation)

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

Relevant Scrutiny Committee

31.       Social Care and Health.

Background Papers

Cabinet Report: 28th July, 2014 - Deprivation of Liberty Safeguards

 

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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