Safeguarding Toolkit for Adult Care Providers Standard 10

It is essential that the workforce in your care service have the right training to meet the needs of the service.

Staff should have completed an introductory course on the overview of the Mental Capacity Act 2005 (MCA) when working in care, health and other related services. Gaining an awareness and understanding of all the legal responsibilities and the principles of the MCA will enable them to apply the MCA principles to their everyday practices. This will in turn keep people safe but allow them to be the decision makers.

The training should provide an understanding of:

• the five core principles
• the importance of MCA and who it supports
• assessing capacity to make an inform decision
• enabling best interest decisions
• making sure that personal wishes are advocated / expressed.

Managers will need to have a better understanding of the MCA that covers:

• peoples’ human rights
• assessing capacity
• lasting power of attorney
• applying best interest meetings
• how deprivations of liberty safeguards are considered.

NICE guidelines aim to help health and social care practitioners support people to make their own decisions where they have the capacity to do so. It also helps practitioners to keep people who lack capacity at the centre of the decision-making process.

This guideline should be read in conjunction with the Mental Capacity Act 2005. It is not a substitute for the law or relevant Codes of Practice.

Further information is available in Standard 3: Training, skills and competencies.

Deprivation of Liberty

Under law, you can deprive someone of their liberty, in certain circumstances, when authorised health and care professionals, in consultation with a person’s family and/or advocates, agree that person lacks capacity to make decisions in their best interests. No one providing care and support wants to deprive people of their liberty; the whole point is to empower people to do their own thing.

To request a Deprivation of Liberty (DoLS) standard authorisation or urgent authorisation, further standard authorisation, or request a review, please contact Surrey County Council via email: dolsteam@surreycc.gov.uk

People in your service may need to have a DOLS authorisation in certain situations and if they lack the relevant capacity to make a decision. These include people with dementia, autism and learning disabilities.

This audit should encompass the 5 Principles outlined in the Mental Capacity Act 2005.

1. Principle 1 (assume capacity). Capacity must be assumed unless it established that they lack capacity.
2. Principle 2 (supporting information). All practical steps must be given to help the person make their own decision.
3. Principle 3 (unwise decisions). People have the right to make decisions even if there are unwise decisions this doesn’t mean they lack capacity.
4. Principle 4 (best interest) of the MCA. Decisions must be in their best interest.
5. Principle 5 (least restrictive alternative). Decisions and actions must be the least restrictive as possible.

NICE Guidelines NG 108 Decision-Making and Mental Capacity (2018) and Nice Quality Standards published August 2020.

Nice Quality Standards 2020

• People aged 16 and over who may lack capacity to make decisions are supported with decision making in a way that reflects their individual circumstances and meets their particular needs.
• People aged 16 and over at risk of losing capacity to make decisions, and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review.
• People aged 16 and over who are assessed as lacking capacity to make a particular decision at the time that decision needs to be made, have a clear record of the reasons why they lack capacity and the practicable steps taken to support them.
• People aged 16 and over who lack capacity to make a particular decision at the time that decision needs to be made have their wishes, feelings, values and beliefs accounted for in best interest’s decisions.

To gain a full picture of both practitioner’s knowledge and understanding, and of their ability to practically implement the Mental Capacity Act, this audit will be conducted in two parts.

Understanding deprivation of liberty – What is it?

The Deprivation of Liberty Safeguards (DoLS) have been in operation since 1 April 2009 and care homes and nursing homes will be familiar with the Safeguards, the Regulations, (3) the DoLS code of practice, associated guidance and forms.

The European Court of Human Rights (ECtHR) has ruled that the rights of people who are unable to make their own decisions, especially where they need to be deprived of liberty in their own best interests, need to be protected.

Delivering care without restricting people’s personal freedoms wherever possible, health and social care staff may believe that it is necessary to deprive someone of their liberty, in certain circumstances.

The Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DOLS) exist to protect people who cannot make decisions about their care and treatment, in a particular restrictive way.

This is where the treatment or care regime, that people are experience rather than the person’s own health or condition, that is leading to a significant restriction and/or restraint of the person’s freedom.

Here are some examples that demonstrate that a deprivation of a person’s liberty may be occurring if:

• The decision was made to admit the relevant person to a care home or hospital is being opposed by relatives or carers
• Where a person is making a purposeful attempt to live the care home or hospital, and it would not be safe for them to leave alone
• The relevant person is adamant that he/she wants to return home and has not given valid consent to the placement.
• Visitors are not allowed, or severely restricted with visiting
• Sedation is being used to prevent her/him from making an attempt to leave the care
• The care home is denying the request by relatives or carers for the resident to be discharged
• The resident is being denied freedom of movement/ association within the care home and/or his/her access to the community is severely
• Constant supervision
• restraint was used to admit a person to a hospital or care home when the person is resisting admission

If you have any queries or concerns regarding a possible deprivation of liberty, please discuss with your line manager. The Deprivation of Liberty Safeguards (DoLs) team is also available to support and advise.

To request a Deprivation of Liberty (DoLS) standard authorisation or urgent authorisation, further standard authorisation, or request a review, please contact Surrey County Council via email: dolsteam@surreycc.gov.uk

Provider should consider a DoLs tracker that can be used to ensure that you maintain a comprehensive list of all individuals who an application has been made and is either awaiting authorisation or subject to DoLs Authorisations.

The tracker would allow you to quickly identify where conditions are placed on the DoLs authorisation to enable full and proper audit of the DoLs granted within your service, those that are due for renewal and those that may need updating subject to a change in circumstances. 

Advocacy services for residents must be place to support their decision making in accordance with their legal rights under the Care Act 2014 and MCA 2005.

NICE guidance for safeguarding adults in care homes states that:

• All organisations involved with safeguarding adults in care homes should:
  • understand the role of advocacy in relation to safeguarding, and that the advocate is the only person who acts solely according to instructions from the resident.
  • think about the resident's needs and know when to refer people for advocacy.
  • involve an independent advocate for the resident, when this is required by the Care Act 2014 and Care Act 2014 statutory guidance or the Mental Capacity Act 2005.
  • ensure that anyone supporting the resident as an informal or independent advocate has been identified in line with the resident's statutory rights to advocacy under the Care Act and the Mental Capacity Act.

Care homes should tell residents:

• how advocates can help them with safeguarding enquiries
• that they may have a legal right to an advocate, and what the criteria for this are.

Practitioners involved in managing safeguarding concerns should build effective working relationships with advocates and other people supporting the resident.

The Social Care Institute for Excellence (SCIE) have helpful advice on commissioning advocacy.

The advocacy duty will apply from the point of first contact with the local authority and at any subsequent stage of the assessment, planning, care review, safeguarding enquiry or safeguarding adult review. If it appears to the authority that a person has care and support needs, then a judgement must be made to see:

• whether that person has substantial difficulty in being involved, and
• if there is an absence of an appropriate individual to support them.

An independent advocate must be appointed to support and represent the person for the purpose of assisting their involvement if these two conditions are met and if the individual is required to take part in one or more of the following processes described in the Care Act:

• a needs assessment
• a carer’s assessment
• the preparation of a care and support or support plan
• a review of a care and support or support plan
• a young carer’s assessment
• a safeguarding enquiry
• a safeguarding adult review
• an appeal against a local authority decision under Part 1 of the Care Act (subject to further consultation).