Agenda item: 11

Ref: CM/05/11/10

PUBLIC BOARD MEETING -14 SEPTEMBER 2011

DEPRIVATION OF LIBERTY SAFEGUARDS

ISSUE

  1. To present proposals for how CQC will monitor and report on the Deprivation of Liberty Safeguards (DoLS) and seekagreement on the way forward.

RECOMMENDATION

  1. The Board is asked to NOTE and COMMENT on the proposals to develop CQC’s ability to effectively monitor the DoLS.

BACKGROUND

  1. An amendment to the Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007 introduced the DoLS which came into force on 1 April 2009. They provide formal procedures to protect people who for their own safety and in their own best interests need care and treatment that may deprive them of their liberty but who lack the capacity to consent.
  1. The regulations also:
  • Place a duty on CQC to monitor the operation of the DoLS;
  • Make a requirement for CQC to report on that monitoring when required by the Secretary of State;
  • Give CQC the ability to provide advice and information to the Secretary of State on DoLS (or place a requirement to do so when requested by the Secretary of State);
  • Give powers for CQC to enter hospitals and care homes, conduct interviews and review records in order to monitor DoLS.
  1. CQC also has a duty in relation to the DoLS under The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). OPCAT is an international human rights treaty designed to strengthen the protection of people deprived of their liberty. Such people are particularly vulnerable to ill-treatment and the treaty provides that efforts to end ill-treatment should focus on prevention through a system of regular visits to places of detention.The UK ratified OPCAT in 2003 and designated its National Preventative Mechanism in March 2009. The CQC is one of the bodies that makes up the UK’s National Preventative Mechanism.At a minimum, OPCAT requires that NPMs have the power and resources to:
  • Conduct regular and unannounced visits to places of detention where people are or may be deprived of their liberty
  • make recommendations to the relevant authorities with the aim of improving the treatment and conditions of detainees, and the prevention of ill-treatment or torture;
  • submit proposals and observations concerning existing or draft legislation.
  1. Our first report on DoLS was published in March 2011. It presented findings on councils and PCTs in their role as ‘supervisory bodies’ which authorise DoLS applications. These findings were drawn from our routine assessments of councils and a bespoke information collection from PCTs.
  1. The report also presented findings on ‘managing authorities’ (the providers of regulated activities at hospitals and care homes who can deprive someone of their liberty) through a bespoke re-analysis of information from our monitoring of care homes and some findings from our Mental Health Act Commissioners. The information on care homes came from inspections carried out under the Care Standards Act 2000. We had limited information on the use of DoLS in hospitals for this first report.
  1. Overall, the report showed variability in how well the DoLS are embedded. The key variations were in:
  • incidence of the use of DoLS
  • development of systems to deal with the DoLS
  • understanding and awareness of DoLS
  • understanding of the wider MCA.
  1. The environment in which we are operating has changed significantly since the time covered by our first report:
  • Care homes and hospitals are now registered under the Health and Social Care Act 2008 with a new approach to monitoring compliance.
  • We no longer have a remit to assess PCTs and councils
  1. These changes mean that we must develop our approach to monitoring DoLS. This document sets out our approach to monitoring and reporting on DoLS under the new regulatory framework. This is a long term approach which may take several years to complete and embed. A cross-directorate steering group has been set up to work through and lead the implementation of the development of this approach.

KEY ISSUES

  1. The following paragraphs set out our proposed approach to monitoring the DoLS for the various elements of our duties under the Mental Capacity Act and the OPCAT.In relation to DoLS, it is based on two principles.
  • DoLS have sometimes been perceived as something special and different. But if you remove the label “DoLS”, it is clear that managing situations where people lack capacity to consent, and situations where their liberty needs to be restricted, are a core part of routine practice. DoLS can therefore be monitored and assured in providers in the same way as other essential elements of care in the Essential Standards, and in accordance with the requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010. Our Guidance about Compliance with the Essential Standards indicates that proper use of the DoLS are relevant to several Outcomes.
  • The legal framework for DoLS was new in April 2009. But it is no longer new: increasingly, we expect that providers, councils and PCTs should all have arrangements for complying with it and embedded it into their proceduresand governance.

Monitoring the use of DoLS in providers (known as managing authorities for DoLS purposes).

  1. We are not proposing special treatment for DoLS in the compliance monitoring we carry out in respect of registered providers. It should be a key part of the risk information that compliance inspectors scan to identify issues for follow up, and planned prospective monitoring should include hooks for ‘drilling down’ into DoLS wherever it is appropriate to do so. In certain scenarios however, it may always be appropriate to do so and this will be clarified in guidance for our inspectors.
  1. To underpin this approach, we are currently designing further training to take place for our fieldforce (including our Mental Health Act Commissioners) in November to ensure understanding of the DoLS, our duty to monitor the DoLS, and the methodology for doing so. This training will also raise awareness amongst our staff about CQC’s duties under OPCAT. The regional safeguarding network is reinforcing its role as a resource to raise awareness of the DoLS and support and advise inspectors and Mental Health Act Commissioners. We are currently reviewing and updating all of our guidance and tools for inspectors on DoLS.
  1. Improving information available to inspectors, so that they can identify potential concerns, is the central part of this development. A thematic review is under way and will report in September on the available information and how it can be used to enable inspectors to do this. The review draws together and analyses existing information about DoLS to improve risk assessment in terms of how the DoLS provisions are being implemented. The review will utilise information both from the NHS Information Centre as well as statutory notifications made to CQC. The outputs of the review will provide a framework with which to measure performance in terms of DoLS applications and notifications and support compliance inspectors when making regulatory decisions around the use of DoLS.
  1. We are also looking to improve the flow of information to us. The key type of information about this is the notifications which providers are required to make each time they apply to deprive someone of their liberty.
  • A pilot project is under way on electronic notifications to us of DoLS. This should increase both their number and consistency. To improve our ability to compare and analyse the information the notifications contain, we have asked DH to make regulations so that we can require providers to make their notifications on a form supplied by us: currently they can choose the format and content, making analysis difficult. DH are consulting on regulations on this, to come into effect in April 2012.
  • In order to improve the quality of information we receive about applications to deprive people of their liberty, we have also looked at how we might enforce the existing obligation to make notifications. One option is to use our ability to issue fixed penalties for failure to make notifications, with the aim of increasing rates of notifications. That enforcement power was designed for relatively low level breaches such as this, and the thematic review will help clarify if sufficient evidence of failure to notify could be easily available from comparing our notifications with NHS data.
  • The Mental Health Act Programme within the Implementation Review will strengthen the flow of information from Commissioners’ visits. These are a key way of identifying where there may be cases of ‘de facto detention’ in mental health hospitals which demonstrates poor understanding of the DoLS.
  1. We do however need to test and check that these actions add up to effective monitoring of DoLS. Our key ways of doing so are:
  • We are seeking a new field to be included in CRM which will record whenever DoLS has been monitored during our regulatory work. This will enable us to track what checks are made. (DoLS are relevant to a number of the essential standards and the current mechanism does not allow enquiry specific to DoLS to be identified and recorded separately or in their own right.)
  • We are aligning this development work with the current pilot for compliance inspections. All planned inspections will include outcome 7 (Safeguarding) in hospitals and care homes. We will track the pilot’s evaluation to consider whether this acts as a gateway to inspecting DoLS where appropriate, as intended, or whether any further guidance such as triggers might be needed, or whether any additional standards should be mandatory in these inspections to ensure relevant monitoring.
  1. We will also monitor where people using services may be deprived of their libertyin settings other than in care homes & hospitals.Under the Mental Capacity Act only care homes and hospitals can apply to their Supervisory Body and deprive a person of their liberty using the DoLS. Any other provider will need to apply to the Court of Protection to deprive a person of their liberty and providers are obliged to notify us when they do this. CQC has a duty to monitor the whole operation of the DoLS which includes assessing the use of the legislation outside of care home and hospital settings. Some recent cases, particularly in theCourt of Protection have involved the use of DoLS in supported living environments. We are making our arrangements to monitor and track these situations more systematic (they have previously been ad hoc). CQC’s legal team will collate an overview of any court cases in which CQC is joined as an interested party, or in which it is specifically mentioned and will report on these to the steering group. This should highlight any issues which CQC may need to include in its report or on which it might usefully make any recommendations. As providers are also required to notify CQC if an application is made to the Court of Protection to deprive a person of their liberty, we will also use these notifications from providers outside of care homes and hospitals to inform our monitoring function.

Monitoring the use of DoLS in councils and PCTs (known as supervisory bodies for DoLS purposes).

  1. Under the Mental Capacity Act we retain the duty to monitor the operation of the DoLS in its entirety and we consider that this therefore includes the work of councils as supervisory bodies (and PCTs until April 2012). CQC no longer has a role in regularly assessing councils and PCTs as commissioners and we have no means by which to collect any information on this aspect of the DoLS framework. Our primary focus in monitoring the DoLS will therefore be within managing authorities rather than within supervisory bodies as this is where we as a regulator can have the biggest impact ensuring that people using services have their rights protected through the appropriate use of the DoLS.
  1. Whilst we may not carry out any bespoke monitoring activity within councils (and PCTs until April 2012) we will utilise data from the NHS Information Centre on the use of the DoLS which is presented at local authority and PCT level.

Reporting on our monitoring of the DoLS

  1. The Mental Capacity Act requires CQC to report on our monitoring of the DoLS when required by the Secretary of State as well as giving us the ability for CQC to provide advice and information to the Secretary of State on DoLS whenever we may choose. There is no statutory requirement for us to report annually on the DoLS. However, the Government has produced a Code of Practice on the DoLS which states that we will produce an annual report[1]. There is an expectation arising from this Code of Practice and from stakeholders that CQC will report annually on the DoLS.
  1. We intend that a report on the DoLS will continue to be produced annually. Initially this will be a stand alone report, but in the future this will where possible be incorporated into the State of Care report. CQC’s second report will be published in January 2012 and will be a stand alone report which will report on the use of the DoLS as well as setting out CQC’s approach to monitoring the DoLS.
  1. Information is currently being gathered as part of the State of Care report to see whether relevant information for DoLS can be extracted from inspection reports. In future years a system will be in place for this. By July/August this work will be completed providing guidance as to whether this information is sufficient for inclusion in the next annual DoLS report and where there may be some gaps in our ability to monitor the DoLS through compliance monitoring.
  1. Information from the following sources will provide us with evidence on which to produce the next DoLS report as well as future reports:

CQC’s information:

  • Information from compliance monitoring – eg inspection reports
  • Aggregated data from providers’ statutory notifications on DoLS
  • Information from reports produced by our Mental Health Act Commissioners

Data from other sources:

  • Data from the Information Centre – detailed PCT and council level data outlining number of applications made and proportions of authorised/rejected applications as well as demographic data of people subject to DoLS.
  • Information on DoLS from the Parliamentary and Health Service Ombudsman

Stakeholder engagement to communicate our approach to monitoring DoLS

  1. Stakeholder engagement is essential in order to secure understanding of our view as set out in paragraph 11 that monitoring DoLS should be considered part of the mainstream rather than a separate function, and of the reduction in our role related to councils and PCTs. An engagement plan has been drawn up which includes both internal and external stakeholders.
  1. We have met with the Department of Health to discuss this approach and obtain their views on whether this will enable us to effectively fulfil our duty and reflect their policy objectives. They have been supportive so far and a further meeting is scheduled for late August (a verbal update will be given to the Board if there are any issues arising).

Reviewing our monitoring of the DoLS.

  1. It is essential that we continue to scrutinise our monitoring of the DoLS to ensure that CQC is fulfilling its statutory duties. The collation and analysis of the information on an annual basis for our report will give an indication as to the consistency and coverage of our monitoring of the DoLS through compliance monitoring.
  1. In addition to this the steering group will continue to run on a quarterly basis to ensure regular review of our DoLS monitoring. The group will seek to develop some qualitative criteria to review the effectiveness of our monitoring role.
  1. In addition we will seek ways to regularly review our monitoring through, for example, the number of statutory notifications we receive from providers about DoLS applications. We can easily compare this to the data from the Information Centre. We may also look into reviewing the frequency of reporting on DoLS in compliance reports.

LINK TO STRATEGIC OBJECTIVES & BUSINESS PLAN

  1. Monitoring and reporting on DoLS is a statutory duty and is reflected in the draft business plan for 2011/12 and draft business plans of all directorates.

RESOURCE & RISK IMPLICATIONS

  1. The approach outlined in this paper does not envisage the need for any immediate extra resources as most of the work will be integrated into business as usual compliance monitoring. The proposal needs to be considered within the context of CQC’s duty to monitor DoLS, the Department of Health’s expectations in that regard, and media and stakeholder expectations.
  2. There are several risks with this approach. There is a risk that information from compliance monitoring may not be sufficient to enable us to discharge our duty of monitoring DoLS in care homes and hospitals. There is also a risk that we are considered to be failing our duty to monitor and report on DoLS especially other than in care homes and hospitals, and in particular in relation to councils. These risks are being monitored and managed over the next through months by the Steering Group. In particular, the Thematic Review and Engagement Plan will help identify and minimize these risks as early as possible.

RECOMMENDATION

  1. The Board is asked to NOTE and COMMENT on the proposals to develop CQC’s ability to effectively monitor the DoLS.

NEXT STEPS

  1. Following discussion of this approach at the Board work will continue developing our monitoring of the DoLS as outlined in this paper.

Amanda Hutchinson

Interim Director of Regulatory Development

Amanda Sherlock

Director of Operations

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[1]HM Government Mental Capacity Act 2005: Deprivation of Liberty Safeguards. Code of Practice to supplement the main Mental Capacity Act Code of Practice; p103.