Archived decisions

HAMPSHIRE COUNTY COUNCIL

Decision Report

EXECUTIVE SUMMARY

1) Summary of Decision Area

1.1. This report concerns the decision to adopt a working agreement between Hampshire County Council and Hampshire Primary Care Trust (PCT) for the operation of a joint system for the Deprivation of Liberty Safeguards (DOLS).

2) Issues Covered in Report

2.1. Background information about DOLS and the new responsibilities it brings for local authorities and PCTs.

2.2. Reasons behind the need for a working agreement with Hampshire PCT.

2.3. The factors that are included in the working agreement.

2.4. The options for whether and how the working agreement should be formulated.

3) Recommendations

It is recommended that:

3.1. authority be given to the Director of Adult Services to enter into an agreement between Hampshire County Council and Hampshire Primary Care Trust for the operation of a joint system for the Deprivation of Liberty Safeguards.

MAIN REPORT

1) Contextual Information

1.1. The Deprivation of Liberty Safeguards (DOLS) are being introduced to protect the human rights of people who lack capacity and are deprived of liberty in registered care homes or hospitals, but are not detained under the Mental Health Act 1983. This amendment to the Mental Capacity Act 2005 (MCA) results from the European Court of Human Rights judgement in the Bournewood Case in October 2004, and it will be implemented in April 2009. It is a substantial legislative change, conferring local authorities with the power to deprive people of their liberty for the first time ever.

1.2. The Safeguards introduce new responsibilities for local authorities in the case of registered care homes, and primary care trusts (PCTs) in the case of hospitals, to act as `supervisory bodies'. In operational terms this means that local authorities and PCTs will receive referrals from registered care homes and hospitals respectively and must decide whether or not to authorise deprivation of liberty for particular people. Assessments will be carried out by a best interests assessor and a doctor and the whole process, including the final decision, must be completed within specified deadlines.

1.3. In common with most local authorities and PCTs in the country it has been decided to operate a joint administrative system for DOLS in Hampshire, since there are many duties common to both organisations. Since it is estimated by the Department of Health that 80% of referrals under DOLS will come to local authorities, Hampshire County Council is hosting the administrative function. The Department of Health gave some advice concerning joint DOLS systems at the end of February, which has necessitated bringing this decision paper at a very late stage in the process of DOLS implementation.

2) Key Issues

2.1. Need for a working agreement

2.1.1 Until recently it was believed that it would be possible to create a working agreement for the joint DOLS process which could be a schedule of the Section 256 agreement with Hampshire PCT. However, due to the latest advice from the Department of Health about the factors which need to be included in such a working agreement, it is no longer appropriate or possible for it to be a part of Section 256 arrangements.

2.1.2 Legislation has recently been passed (mid-February 2009) to allow DOLS to be included in Section 75 agreements, where it was not legally possible previously, and in due course the necessity or appropriateness of this course of action will be considered with Hampshire PCT. However this will not happen by 1^st April 2009 when DOLS comes into force.

2.1.3 In the meantime a working agreement must be put in place, to provide a mechanism for the financial transactions and employee insurance/indemnity issues listed below.

2.2 Factors to be included in the agreement

2.2.1 A joint administrative system, hosted by Hampshire County Council, with a financial contribution from the PCT, and described in a joint DOLS procedure.

2.2.2 A joint Paid Representative service - this is a requirement of DOLS to provide advocates for people deprived of their liberty but with no one to represent them. Hampshire County Council has tendered for this service and will host the contract, with a financial contribution from the PCT.

2.2.3 Payments from Hampshire County Council to Hampshire PCT for doctors' assessments carried out in registered care homes.

2.2.4 Payments from Hampshire PCT to Hampshire County Council for best interests assessments carried out in hospitals (all of the best interests assessors in Hampshire are County Council employees, until October 2009).

2.2.5 A statement to the effect that where a doctor is carrying out an assessment on behalf of Hampshire County Council in a registered care home, or where a Council employee is acting as a best interests assessor on behalf of Hampshire PCT in a hospital, it is intended that they will continue to be covered by the insurance of their employer in carrying out such duties, as the work falls within the normal course of their employment and they will remain under the sole instruction and supervision of their employer. This arrangement is possible because each organisation is paying the other for their staff's services within the bounds of the working agreement.

3) Financial Implications

3.1 Since the Department of Health has estimated that 80% of referral

will come from registered care homes and 20% from hospitals, local authorities have been given 80% of funds for DOLS and PCTs have been given 20% of funds. Part of the agreement between Hampshire County Council and Hampshire PCT is therefore that the PCT will contribute 20% of the cost of shared functions of the joint system.

3.2 The table below outlines the financial costs involved.

* estimate, taken from scoping exercise, based on 400 assessments costing £177 each

4) Outline of Options

4.1 Option 1

4.1.1 Include agreement as a schedule to the Section 256 agreement with Hampshire PCT

4.2 Option 2

4.2.1 Include agreement as a schedule to the Section 75 agreement with Hampshire PCT

4.3 Option 3

4.3.1 Create stand-alone working agreement with Hampshire PCT

4.4 Option 4

4.4.1 Cancel the arrangements for the joint DOLS system and operate independently from Hampshire PCT.

5) Option Analysis / Comparison:

5.1 Option 1 - due to recent Department of Health advice, it is no longer possible to include this agreement as a schedule of the Section 256 agreement with Hampshire PCT.

5.2 Option 2 - it only became possible to include DOLS in Section 75 agreements when legislation was passed to that effect in mid-February 2009. There has not been sufficient time to look at all of the implications of including this agreement in the Section 75 agreement with Hampshire PCT and to have such an amendment signed off by 1^st April 2009. This option will be considered with the PCT as soon as it is practicable.

5.3 Option 3 - in order to go ahead with a joint DOLS system with Hampshire PCT, it is necessary to create a stand-alone working agreement to incorporate the factors listed under section 2 above and to enable the joint system to function in a safe and legal manner.

5.4 Option 4 - cancellation of the joint DOLS system at this late stage in the process would have financial implications for Hampshire County Council, i.e. the loss of Hampshire PCT's contributions totalling £36,642. However the legal implications of potential lack of access to doctors would be far greater and could prevent Hampshire County Council from fulfilling its statutory duties under DOLS. In addition, Hampshire PCT would be left in a very difficult position without an administrative system to manage their legal duties as supervisory body for DOLS, and without access to best interests assessors.

6.) Conclusions

6.1 Having analysed the four options above, option 3 provides the only feasible route for Hampshire County Council to fulfil its legal duties under DOLS from 1^st April 2009.

7) Recommendations

Please see Executive Summary for recommendations.

CORPORATE OR LEGAL INFORMATION:

IMPACT ASSESSMENTS:

1. Equalities Impact Assessment:

a) This assessment is in the process of being completed. It is difficult to predict the effect of DOLS before it comes into force, however there are certain groups that it is more likely to be applied to e.g. people with severe learning disability or dementia. There is also evidence that detention under the Mental Health Act 1983 is disproportionately applied to people from ethnic minority groups and there is a danger that this phenomenon may be repeated under DOLS. Careful monitoring of the use of DOLS will provide information on its impact and will be used to influence practice.

2. Impact on Crime and Disorder:

a) No anticipated impact.

3. Climate Change:

a) How does what is being proposed impact on our carbon footprint / energy consumption?

· N/A

b) How does what is being proposed consider the need to adapt to climate change, and be resilient to its longer term impacts?

· N/A