Contact: Denise Holden ext. 7338

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1. Summary and Purpose

1.1. This report provides Members with information about the issues brought to the attention of the Committee and the response to these referrals. It sets out the inquiries received, the source of this inquiry and any action taken. Where appropriate comments have been included and copies of briefings or other information attached.

1.2. The approach adopted provides the route through which Patient and Public Involvement Forums (P&PIFs) and other partner organisations (Hampshire district councils, NHS organisations, voluntary and independent sector providers and organisations that are representative of social care service users and carers) can raise issues with the Committee.

1.3. Where inquiries raised with the Committee are already subject to monitoring or other performance management activities the action taken will be focused on the local resolution of inquiries through appropriate sign-posting to the agency best placed to respond.

1.4. Where an issue cannot be satisfactorily resolved between the parties concerned then the Committee can consider options for further action.

1.5. New issues raised with the Committee, and those that are subject to on-going reporting are set out in Table One of this report.

1.6. The recommendations included in this report support the Corporate Strategy aim of maximising wellbeing through the overview and scrutiny of health services in the Hampshire County Council area.

Table One: Inquiries Received and Action Taken

Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1. Published works

2. Documents that disclose exempt or confidential information as defined in the Act.

Annexe One

Changes to Day care Provision in north Hampshire

Response from Adult Services

This is part of the modernisation of day care services, to ensure that the services ASD purchase are value for money, meet day care standards, and can meet the needs of individual service users who meet the eligibility criteria threshold of critical and substantial.

The contract with Rosefield Court Day Centre for the purchase of 25 day care placements per day, three days a week for older people is due for renewal on 31 March 2007. The decision has been taken following discussions on 2 August 06 and 6 October 2006 with Dr Barnes (the manager of Rosefield Day Centre) not to renew this contract for a number of reasons. Contact names were provided of HCC Funding Officers who may be able to assist the Day Centre in identifying alternative sources of funding to enable them to operate as a social club. The Day Centre has some private customers and dedicated volunteers.

Existing service users who do not meet ASD eligibility criteria will be signposted to alternative services. They can be re-assured that they will be offered a suitable service at least one day a week.

The reasons for the non-renewal of the contract with Rosefield were fully discussed and Dr Barnes appreciated the issues. Rosefield Court cannot meet the high dependency needs of current and future service users. It provides a service for lower dependency service users which does not fall within ASD funding. There are areas which do not meet the contractual requirements such as Health & Safety policies and procedures. The current insurance cover held by the Day Centre falls short of HCC requirements.

Work is ongoing to develop low level preventative opportunities in the community for people who do not meet the eligibility criteria of critical and substantial. i.e. those who are not funded by ASD.

Adult Services staff are informing service users and their carers of this decision and are continuing to update them about the situation. All service users who meet Adult Services Department eligibility criteria threshold of critical and substantial will be consulted by staff on alternative services that they would be able to use. Their preferences will be taken into account when making any final decisions on their future provision.

Annexe Two

Mental Capacity Act 2005 - Summary

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.

Guidance on the Act is provided in a Code of Practice. People who are placed under a duty to have regard to the Code include those working in a professional capacity e.g. doctors and social workers. A draft Code was made available to Parliament and is available on the DCA website (under "Mental Capacity Bill and supporting documents"). A revised version will be available in December 2006.

The whole Act is underpinned by a set of five key principles stated at Section 1:

· A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;

· The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;

· That individuals must retain the right to make what might be seen as eccentric or unwise decisions;

· Best interests - anything done for or on behalf of people without capacity must be in their best interests; and

· Least restrictive intervention - anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

What does the Act do?

The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes.

The Act deals with the assessment of a person's capacity and acts by carers of those who lack capacity

· Assessing lack of capacity - The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a "decision-specific" test. No one can be labelled `incapable' as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person's age, appearance, or any condition or aspect of a person's behaviour which might lead others to make unjustified assumptions about capacity.

· Best Interests - Everything that is done for or on behalf of a person who lacks capacity must be in that person's best interests. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person's best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted.

· Acts in connection with care or treatment - Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person's body or property in the ordinary course of caring. For example, by giving an injection or by using the person's money to buy items for them.

· Restraint/deprivation of liberty. Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm.

· Section 6(5) makes it clear that an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights cannot be an act to which section 5 provides any protection.

· The Department of Health and National Assembly for Wales have each issued interim advice to the NHS and local authorities on the implications of the European Court of Human Rights judgment in HL v United Kingdom (the "Bournewood" case), pending the development of proposals for new procedural safeguards for the protection of those people falling within the "Bournewood gap".

The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity

· Lasting powers of attorney (LPAs) - The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions.

· Court appointed deputies - The Act provides for a system of court appointed deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.

The Act creates two new public bodies to support the statutory framework, both of which will be designed around the needs of those who lack capacity

· A new Court of Protection - The new Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges.

· A new Public Guardian - The Public Guardian and his/her staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions. The Public Guardian will be required to produce an Annual Report about the discharge of his/her functions.

The Act also includes three further key provisions to protect vulnerable people

· Independent Mental Capacity Advocate (IMCA) An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person's wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary. The IMCA service needs to be commissioned by local authorities during 2006 and needs to be ready to start on April 1^st 2007. DH is making new resources available for the IMCA service.

· Advance decisions to refuse treatment - Statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future. It is made clear in the Act that an advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands "even if life is at risk".

· A criminal offence - The Bill introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.

The Act also sets out clear parameters for research

· Research involving, or in relation to, a person lacking capacity may be lawfully carried out if an "appropriate body" (normally a Research Ethics Committee) agrees that the research is safe, relates to the person's condition and cannot be done as effectively using people who have mental capacity. The research must produce a benefit to the person that outweighs any risk or burden. Alternatively, if it is to derive new scientific knowledge it must be of minimal risk to the person and be carried out with minimal intrusion or interference with their rights.

· Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project. If the person shows any signs of resistance or indicates in any way that he or she does not wish to take part, the person must be withdrawn from the project immediately. Transitional regulations will cover research started before the Act where the person originally had capacity to consent, but later lost capacity before the end of the project.