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The Care Quality Commission has warned that it has come across “too many examples” of people using health and adult care services who were being cared for in ways that potentially amounted to an unlawful deprivation of their liberty, and therefore potentially a breach of their human rights.
“In most cases, this was because services imposed significant restrictions on liberty without any consideration of the Deprivation of Liberty Safeguards,” the regulator said.
In a report entitled The operation of the Deprivation of Liberty Safeguards in England 2009/10, the CQC also found a clear variation in organisations’ understanding and practice of the DOLS and in staff training. “We came across too many examples of managers and staff in hospitals and care homes who are unaware of the Safeguards or who have had received no training on them, even towards 2009/10.”
The Commission, which is under a duty to monitor application of the DOLS, said it had similarly seen “too many examples” where staff had failed to consider whether certain practices could deprive a person of their liberty.
The CQC acknowledged calls from managing authorities, supervisory bodies and key stakeholders for clearer guidance as to what constitutes a “deprivation of liberty”. The regulator said there needed to be more understanding around the circumstances that may amount to a deprivation of liberty and of the types of cases that should have gone to the Court of Protection.
“We acknowledge the difficulty in understanding exactly which circumstances amount to a deprivation of liberty and in keeping pace with legal judgments from the Court of Protection that continually refine and add to the body of knowledge around what constitutes a deprivation of liberty,” it added.
However, the watchdog insisted that lack of a definition should not be used as an excuse, adding: “While it may be helpful to have a clear definition of a deprivation of liberty, health and social care staff should be trained effectively to be aware of the types of practice that could mean people using their services are deprived of their liberty. If there is any uncertainty, they can seek advice from their supervisory body.”
The Commission revealed that managing authorities, supervisory bodies and key stakeholders had criticised the DOLS as being over-bureaucratic and for the amount of paperwork that was needed to make assessments and comply with legal requirements.
The regulator said that although it did not have substantive evidence on this issue, it may have influenced the lower than expected rate of applications to deprive a person of their liberty (7,160 were made in England compared to the 21,000 predicted for England and Wales). “If the processes to do so are expensive and time-consuming, it is possible that managing authorities and supervisory bodies are either changing their practice to ensure that they do not deprive people of their liberty, or worryingly, they may not be adhering to the Deprivation of Liberty Safeguards.”
The CQC said it had also found a lack of understanding of the wider Mental Capacity Act. The regulator said some misunderstanding and lack of awareness of the DOLS might be expected as they were relatively new and only recently implemented, but described this lack of understanding of the basic principles of the more established MCA as “unacceptable”.
The CQC suggested that some aspects of the DOLS regime, which came into force on 1 April 2009, had been working well. These were that some hospitals and care homes have been demonstrating good practice in using the Safeguards to protect people’s rights, and had made some good progress in ensuring that their staff were aware of their duty under the Safeguards.
Many PCTs and councils had also made good progress in the first year in implementing the mechanisms set out in the Safeguards, according to the Commission. In addition, they had worked effectively together, and established joint teams to fulfil their supervisory body role.
The report identified a wide variation in the rates of applications per 100,000 of population. The highest number were made in the East Midlands (35 per 100,000) and lowest in the South West (12.5 per 100,000). More than half the applications were not authorised.
The CQC made seven recommendations in its report. These were that:
- The Department of Health should consider developing “clear and concise” briefings that are regularly updated and circulated to all bodies involved in the Safeguards. “These briefings must be explicit about the implications of the case law for practice and be written in a way that is accessible and more easily applied to practice than previous briefings”
- All organisations with a role to play in the Safeguards should ensure that relevant staff are effectively trained in the Safeguards and that they understand the requirements placed upon them by the Safeguards
- All organisations with a role to play in the Safeguards should ensure that all staff fully understand the requirements of the wider Mental Capacity Act “to ensure that people using services have their rights protected and supported”
- Supervisory bodies should give careful consideration to how they are fulfilling their role as a supervisory body in key areas such as their capacity to conduct assessments and to ensure consistency in the outcomes of applications to deprive a person of their liberty
- Supervisory bodies should ensure that those managing authorities from which they commission care are fully aware of their responsibilities under the Safeguards and consider whether they have been proactive enough in promoting and supporting understanding within managing authorities of the Safeguards
- Managing authorities should ensure that all staff are fully aware that they should be using the least restrictive methods to care for people using services. “People should only be deprived of their liberty if it is in their best interests and if it is essential to ensure that they do not come to harm”
- Managers working in mental health units should ensure that all staff in these units are aware that imposing restrictions of movement on all patients may be a deprivation of liberty for informal patients. “This will ensure that the way they care for informal patients does not amount to a deprivation of liberty without legal authority.”
The regulator pointed out that its first year of monitoring was done under separate regulatory regimes, and suggested that with the new framework under the Health and Social Care Act 2008 now in place, it was in a position to develop a more consistent approach across health and adult social care.
Philip Hoult
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Parents and local authorities who disagree over special educational provision for a child could be required to go through mediation before an appeal can be made to the First-tier Tribunal (SEN and Disability), the Department for Education has proposed.
The move is part of a package of measures for overhauling the educational and health support given to such children, with the government hailing the reforms as the biggest shake-up in 30 years.
The Green Paper – Support and Aspiration: A new approach to special educational needs and disability – said: “We believe that it is important to have an independent forum where such disagreements can be resolved and that parents have the right to appeal; we have no plans to remove parents’ right to appeal to the First-tier Tribunal if they disagree with decisions made by local authorities. However, while it is important for this right to continue, we know that parents can find the appeal process stressful.”
The Department for Education suggested it would be better for parents and a better use of public funds if disputes about assessments and statements are resolved earlier and through non-judicial means. It acknowledged the work that the Tribunal is already doing in encouraging resolution of cases before a hearing.
Where mediation has been used by West Midlands authorities, four out of five cases reached a settlement without going to the Tribunal, it said. The Green Paper added that dispute resolution services were “under-used and under-promoted”, with an average of little more than one mediation per authority per year and more than half of authorities reporting no mediations during one year.
The Green Paper said: “We propose that parents and local authorities should always try mediation before a parent can register an appeal with the Tribunal, but we do not want this to affect the time that parents have to appeal or to change parents’ right to appeal.”
The Department for Education also announced that it would pilot giving children the right to appeal and make disability discrimination claims in two or three local authorities with a view to extending the right to all children across England. Such a right has been recommended by the United Nations Committee on the Rights of the Child.
“The pilot will test whether the right to appeal is something that children would use, the best way to handle these appeals, and the cost implications of this change,” it said.
This pilot comes as the Ministry of Justice consults on its proposed changes to legal aid. These would mean that legal help and advice would no longer be available to parents to help them prepare appeals to the Tribunal in SEN cases.
Legal aid will still be available where it is now for parents to make disability discrimination claims on behalf of their children, “that is, legal help and advice for First-tier cases and legal representation for cases that go before the Upper Tribunal”. The MoJ is expected to publish its response to the consultation in late spring.
Other key proposals in the Support and Aspiration Green Paper are:
- Inclusion of parents in the assessment process and, by 2014, a legal right giving them control of funding for the support their child needs.
- Replacement of statements with a single assessment process and a combined education, health and care plan (also by 2014). This will mean that health and social services is included in the package of support along with education
- Ensuring assessment and plans run from birth to 25 years old
- Replacement of School Action and School Action Plus with a new school-based category “to help teachers focus on raising attainment”
- An overhaul of teacher training and professional development
- The setting out by local authorities and other services of a local offer of all services available
- Giving parents “a greater choice” of school, either a mainstream or special school. Parents and community groups will have the power to set up special free schools
- Introducing greater independence from local authorities in the assessment of children’s needs. The government will look at how voluntary groups could coordinate the package of support.
The government said the reforms would address problems such as parents battling to get the support their child needed, SEN statements not joining up education, health and care support, and children falling between the gaps in services or having to undergo multiple assessments.
The Department for Education also said it wanted to tackle “a confusing and adversarial assessment process, with parents’ confidence in the system undermined by the perceived conflict of interest where the local authority must provide SEN support as well as assess children’s needs”.
Children’s Minister Sarah Teather said: “We have heard time and time again that parents are frustrated with endless delays to getting the help their child needs, and by being caught in the middle when local services don’t work together.
“Parents and voluntary organisations have given us overwhelming examples where they have felt let down by local services. At the moment there is an appalling situation where public money is being wasted as children are growing out of equipment, like wheelchairs, before they even arrive. The new single assessment process and plan will tackle this issue and mean that parents don’t feel they have to push to get the services they are entitled to.”
Responding to the Green Paper, Baroness Shireen Ritchie, chairman of the Local Government Association’s children and young people board, said: “The aim of creating a single system for people up to the age of 25 with special educational needs is one which the LGA supports. However, more work needs to be done on how to make this ambition a reality.
“Talk of realigning systems simply does not go far enough. What the system needs is a radical transformation built on a firm legislative base.”
Baroness Ritchie said there needed to be a system that joined up SEN provision in schools with that in further education colleges. She also called for sufficient funding to ensure that council support for SEN to be continued at its current level.
“In the recent local government financial settlement, councils saw funding for early intervention cut by 25%,” Baroness Ritchie added. “Councils have been leading the way on giving parents greater control over their children’s education through personalised budgets, but the government needs to make sure that the funding from health, education and social care is available to meet these costs.”
The Green Paper also sets out proposals to help children that have a learning need, but not necessarily a special educational need.
The consultation runs until 30 June. For more information, click here.
Philip Hoult
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The government has launched a consultation on plans to make it unlawful to unfairly discriminate against someone because of their age when providing goods and services, with the new rules set to apply to the public as well as private sectors.
In the consultation the Government Equalities Office also proposed that there should be no specific exceptions for health and social care. “The plans will eliminate harmful discrimination while allowing justifiable and beneficial age-based practices, for example in public health programmes,” it said.
The new rules are expected to come into force in Great Britain (but not Northern Ireland) in April 2012. They will apply equally to the young as well as the old, although not to children under 18.
The consultation proposes some exceptions to the ban, however. One will see companies allowed to continue to offer beneficial services to certain age groups – “for example free bus travel for over-60s, or holidays aimed at people aged 30 and under”, the government said. Providers of financial services, such as insurance companies, will also be allowed to use age when assessing risk and deciding prices.
The government said organisations seeking to use an exception will have to “base such decisions on solid evidence rather than simply imposing a blanket ban”.
The GEO also suggested that: sports bodies would be permitted to impose age restrictions, such as running different teams and leagues for under-21s and veterans; residential park homes would be permitted to include age restrictions in their admission rules; and immigration authorities would be “allowed to treat people differently because of their age where it is necessary for them to fulfil their functions”.
Equalities Minister Lynne Featherstone said: "It's high time we put an end to outdated stereotypes based on age and recognised the valuable contributions that people of all ages can make to our society and economy. When older people are turned away from the market place through unfair treatment, the economy misses out on increased business and revenue.
"These proposals will ensure that doesn't happen, providing new protection and support for people of all ages. However, we don't want to throw the baby out with the bathwater, which is why we will allow businesses to continue to provide the age-specific services that many people of all ages benefit from every day."
Care Services Minister Paul Burstow said that by not seeking any exception from the application of the Equality Act 2010, the Department of Health was sending “a clear message” that there was no place for age discrimination in the NHS.
This follows reports by the British Geriatrics Society and a Health Ombudsman report on care and compassion, which suggested that older people “do not always receive the same standard of care from the NHS as younger patients”.
The minister also pointed to the Age Review carried out in 2009 which identified a number of areas in health and social care where age discrimination was most likely to occur. The review published a number of recommendations on the best way for the ban on age discrimination to be introduced.
Burstow added: “There can be no place for arbitrary age discrimination in the NHS. We know that older people are not always treated with the dignity they deserve because of ageist attitudes.
“Our population is ageing as more of us live longer. The challenge for the NHS is to look beyond a person's date of birth and meet the needs of older people as individuals.”
The Department of Health stressed that the Equality Act 2010 did not aim to prevent age discrimination when there were beneficial or justifiable reasons for it, only harmful discrimination.
“Commissioners and providers of NHS and social care services should continue to make sensible, clinically justifiable decisions based on age for relevant services such as eligibility for screening and vaccination programmes that are based on the best evidence available,” it said.
The Department cited a number of examples of clinical decisions based on age which would not be affected by the ban. These include:
- Cervical cancer screening programme
- NHS Health Checks
- Seasonal flu vaccination
- IVF treatment
- NHS charges
But it also suggested examples of the type of harmful discrimination the ban aimed to end such as:
- “Making assumptions about whether an older patient should be referred for treatment based solely on their age, rather than on the individual need and fitness level
- Not referring certain age groups for a particular treatment or intervention (such as those not of working age) that are considered mainly, but not exclusively for working age adults
- Not considering the wellbeing or dignity of older people.”
NHS South West produced a resource pack that includes a self assessment toolkit for health and social care organisations, a guide for NHS commissioners and providers and a guide for social care.
The proposals can be downloaded from the Government Equalities Office website. The consultation will last for three months.
Philip Hoult
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The Court of Appeal has handed down a significant judgement on the allocation of responsibility between social services authorities for meeting the care needs of a patient discharged into the community following a period of detention under the Mental Health Act 1983.
In Hertfordshire County Council, R v JM (Rev 1) [2011] EWCA Civ 77, Hertfordshire CC and the intervening party (JM) asked the Court of Appeal to make a declaration that “is resident” in s. 117(3) of the MHA 1983 had the same (or substantially the same) meaning as “is ordinarily resident” under s. 24 of the National Assistance Act 1948.
This would have meant that a person placed by a local authority under s. 21 of the NAA in the area of another local authority remained ordinarily resident in the area of the placing authority for the purposes of Part 3 of the NAA 1948 and s. 117(3) of the MHA.
Counsel for Hertfordshire and JM both argued that Mitting J’s decision in the High Court – refusing such a declaration – created practical problems. Counsel for JM, Nathalie Lieven QC, identified these as including:
- “responsibility for the social care of a mentally ill person will shift between local authorities, without any planning or any therapeutic purpose, on the day an individual is detained under s.3 MHA; this is precisely the time when consistent, coherent care is most needed to increase the chances of early discharge and to maintain existing community links
- prior to discharge and subsequently, the social care of a mentally ill person will be provided by a new social work team unfamiliar with the individual's history and family background
- aftercare is more likely to be provided out of the ‘home’ borough, and away from the friends, family and support networks that are vital to re-integration and recovery
- there will be a strong financial incentive on local social services authorities to place people such as JM, who are likely at some point to be admitted under the MHA, outside their borough boundaries."
Giving the lead judgement, Lord Justice Carnwath said he had “considerable sympathy” for Hertfordshire’s arguments. “It is not easy to see why Parliament did not simply follow the precedent of the 1948 Act when enacting the duty under section 117,” he added.
“However, the 1948 Act precedent must have been well-known to those involved in drafting the new Bill….We have to proceed on the basis that Parliament deliberately chose a different formula; and that, by implication, it accepted the possibility of responsibility changing over the period of detention, including the potential impact on continuity of patient care.”
The judge said the Court was also bound by the decision in Stennett to accept that section 117 was intended to be a free-standing provision, not dependent on the 1948 Act.
He added that these considerations were sufficient to require the court to reject Hertfordshire’s proposed form of declaration.