Archived decisions

Agenda Item: 5

HAMPSHIRE COUNTY COUNCIL

Report

1. Purpose of Report

1.1. Following on from the report to this committee of 29^th October 2008, this report provides an update on the activity of the Independent Mental Capacity Advocacy (IMCA) Service for the year April 2008 - March 2009 and also early indications for the period April 2009 - September 2009.

1.2. The report also contains details of the first six months experience for Hampshire County Council of operating the Deprivation of Liberty Safeguards (DOLS), an amendment to the Mental Capacity Act introduced in April 2009.

1.3. Finally the report describes how the experience of both services to date is informing future planning.

2. Contextual Information

2.1. Independent Mental Capacity Advocacy (IMCA) service

2.1.1 The Mental Capacity Act 2005 (MCA) introduced a number of new measures to support people who lack capacity to make particular decisions at particular times. One of those new measures was the IMCA service, which is intended to provide representation of the wishes and feelings of people who lack capacity, when they have no-one else to speak for them and they are having specific decisions made for them. Decision-makers have a legal duty to instruct advocates from the IMCA service when they are making decisions for unbefriended people about where they should live and whether or not they should have serious medical treatment. There are also discretionary powers to instruct an IMCA when there are safeguarding adults proceedings involving people who lack capacity, and for care reviews involving decisions about accommodation.

2.1.2 In Hampshire, the IMCA service is jointly commissioned by the County Council and the PCT from HARG (Hampshire Advocacy Regional Group), a consortium of advocacy schemes across Hampshire. Each member scheme has advocates trained for this work so that there are 25 IMCAs available across Hampshire and there is a central co-ordinator who receives all referrals and allocates them appropriately. The service began on 1^st April 2007.

2.2. Deprivation of Liberty Safeguards

2.2.1 The Deprivation of Liberty Safeguards (DOLS) were introduced in April 2009 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) was a result of the European Court of Human Rights judgement in the Bournewood Case in October 2004.

2.2.2 The main objective of DOLS is to prevent deprivation of liberty whenever possible. However, when it is necessary in the person's best interests to prevent harm to them they will be assessed by a doctor and another staff member (social worker, nurse, OT or psychologist) to help the County Council (for care homes) or the PCT (for hospitals) determine whether or not the deprivation should go ahead. Unbefriended people who are deprived of their liberty are entitled to an paid representative, and those with family representatives have access to the IMCA service for support.

2.2.3 Hampshire County Council operates a joint DOLS system with Hampshire PCT, as the two supervisory bodies in the county, to receive referrals from all care homes and hospitals (managing authorities) and carry out assessments. The final decision about whether or not to authorise deprivation of liberty has to be made by the relevant supervisory body. The joint system is governed by a working agreement with NHS Hampshire, which was reviewed after six months. The system consists of:

· full time Administrator

· management from the MCA Development Manager

· team of best interests assessors (BIAs).

From April to September 2009 there was a seconded team of six specialist BIAs in Adult Services. During that time nine members of staff from Adult Services teams around the county and one employee of the PCT have trained to become BIAs and it was originally intended that they would pick up all assessments from October, alongside the six BIAs who had returned to their posts. However the first six months demonstrated that we needed full time BIAs for urgent assessments so three of the seconded staff were retained for a further six months and those still based in their teams will take on standard assessments as required.

3. a) Performance and outcomes of IMCA service April 08 - Sept 09

Number of referrals

Type of referral

The most significant increases between 2007/08 and2008/09 were in referrals for decisions relating to serious medical treatment, which was evidence of increasing awareness of IMCA and MCA with health staff, and in adult protection cases: a decision was taken to relax the criteria for this discretionary power for people over 65 so that all adult protection cases for unbefriended people would be referred to IMCA, as there is a lack of general advocacy for older people. It has not been able to show comparisons with national figures this year as the national Annual Report for IMCA for 2008/2009 has not been published.

Area and client group

b) Performance and outcomes of DOLS April 09 - Sept 09

Before DOLS was implemented, supervisory bodies were asked to submit estimates of how many assessments they were likely to be undertaking. In Hampshire a questionnaire was sent out to registered care homes asking them to tell us how many residents were likely to experience the factors that can lead to a deprivation of liberty. Based on the responses received, from 40% of homes in the county, it was calculated that there could be up to 1000 assessments per year undertaken for people in care homes and hospitals in Hampshire. The Department of Health also made estimates based on number of care home beds, population and other factors and suggested that there might be in the region of 500 assessments in Hampshire. These figures were very difficult to estimate in advance of putting the legislation into practice and were calculated for planning purposes.

Referrals and authorisations: care homes

Referrals and authorisations: hospitals

Reasons for decisions

It is clearly evident from the figures above that the actual number of assessments is much smaller than anticipated either by the DH or the county. To set this in context, nationally referrals are running at about a third of the level anticipated by the DH and a fifth of what was estimated locally (actual national figures are not yet in the public domain). The priority of DOLS work is to ensure that all managing authorities are fully aware of the legal position regarding deprivation of liberty, to provide protection for all people who need to be deprived of liberty in their best interests and to minimise any unlawful deprivation of liberty. In future, supervisory bodies will be asked to submit estimates of future activity based on the number of assessments that have already happened, which will be far more accurate.

4. Conclusions

4.1. In response to the experience and activity to date for both the IMCA service and DOLS there are considerations for how the services will operate in future:

4.2. IMCA service

4.2.1 The increase in referrals from 2007/08 to 2008/2009, fuelled by work with health colleagues and a widening of eligible recipients, has not yet been replicated in 2009/2010. At the recent contract monitoring meeting for the IMCA service it was decided that since there is some capacity in the contract the following initiatives will be put in place for the remainder of the year:

4.2.1.1 Use of the discretionary power to provide an IMCA for care reviews will be promoted and encouraged within Adult Services

4.2.1.2 All relatives of someone who is deprived of their liberty will be offered support from an IMCA, rather than just those who request the service.

4.2.1.3 Once the national comparator figures are available the performance of the Hampshire service will be assessed and targets set for any necessary increases in activity in the year 2010/2011.

4.3. DOLS

4.3.1 During the first six months of the DOLS service, experience of operating the system has led to some conclusions about how the system needs to operate in future. It is worth stating that the staff working in the system have been very busy, even with much lower activity levels than anticipated, and this is due in considerable part to the complexity of the DH-defined system.

4.3.1.1 The MCA development manager has spent most of his time managing the DOLS system and the BIAs during the last six months at the expense of strategic and practice development for MCA work across the department. He has identified that there is room for a full time post just to manage the DOLS system.

4.3.1.2 As stated already it has become clear that there is a need for full time BIAs to carry out urgent assessments which have to be completed within seven days, and a survey of comparator shire counties has shown that they have all got a mixture of full time BIAs and those based in their locality teams. The current secondment of BIAs ends in March 2010 so work is being undertaken to plan for this need beyond April 2010.

4.3.2 The ability to carry out these plans for resourcing the DOLS system is dependent on availability of budget. DH funding for MCA and DOLS, located in the area based grants, has only been specified until March 2011, which is limiting the potential for planning further ahead.

IMPACT ASSESSMENTS:

1. Equalities Impact Assessment:

1.1. There is no evidence to date of any negative impact on equalities from IMCA or DOLS.

2. Impact on Crime and Disorder:

2.1. N/A

3. Climate Change:

3.1. How does what is being proposed impact on our carbon footprint / energy consumption? N/A

3.2. How does what is being proposed consider the need to adapt to climate change, and be resilient to its longer term impacts? N/A