Consulting on the CQC

Frimley Hospital UK

I’ve been generally critical of the CQC (Care Quality Commission) since it’s establishment. I’ve been particularly critical of what I have seen to be the failings of a regulator for health and adult social care services where I have felt that there has been an impact, by the lack of robust regulation, on the lives of people who use and need the services which are provided.

My main concerns have been about a move away from regular announced and unannounced inspections and a move towards desk-based inspections. However the CQC has been re-evaluating this approach and with a new Chief Executive in David Behan and an outgoing Chair – I wonder if it’s time for me to evaluate my own attitude to the regulator for health and adult social care services in England.

I could never understand how Cynthia Bower was appointed in the wake of the Mid-Staffordshire scandal. It seemed to be a strange appointment. Starting a new agency by merging the functions of the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission was always going to be hard. This combined with new responsibilities to regulate services in different ways seemed to have led the eye to be taken off the ball as far as current standards went with the focus being on bringing new regulatory frameworks in amid low staffing.

As far as social care is concerned (and that’s the area i know best) this move away from  regular on-the-ground inspection of services combined with cuts in funding both to the organisation and to local authorities who might have had their own, more robust, monitoring teams, led to concerns about quality in the services being provided.

However, the CQC seems to be moving on in terms of re-establishing consistent and regular unannounced visits to services and there seems to be a shift in terms of the priorities which they are placing on promoting quality of care over merely meeting the lowest acceptable standards.

I read through the consultation for the strategy of the CQC between 2013-2016 (and, incidentally provided feedback because it is, after all, a consultation!) and it left me more hopeful that the sector might be developing a regulator that it needs.

Six ‘priorities’ are laid out for the next three years.

1. Making greater use of information and evidence to achieve the greatest impact

In this section the CQC acknowledges the move back to regular unannounced inspections and explains the way that information gathered relating to risk has fed into the way that inspections are conducted and that this needs to continue and strengthen in the future.

‘Building an evidence base’ about what works in regulation includes looking at overseas models. Obviously, I’d welcome a fuller evidence-based approach with the caveat that sometimes past excellence can change to present mediocrity by one new member of staff and there will always be some random elements at play in this sector – an area where I think the CQC has failed in the past by simply judging future potential risk by past performance.

The CQC is increasingly going to look at regulating different services in different ways with the same (presumably) framework as inspectors are professional regulators rather than experts in specific sectors. GPs and Dentists need to be monitored in a different way from a nursing home, a large general hospital or a private ambulance service. It seems to make sense.

Using information from different sources is also crucial. The CQC report mentions this. I expect they would feed heavily from local authority complaints in the field of social care and the information we (as LAs) get regarding care providers and particularly our contracting team which monitor quality and complaints. If someone from the CQC came into our LA and spoke to social workers directly about different home care providers and residential homes, I expect they might get a broader view.

2. Strengthening how we work with strategic partners

Here the CQC mention the changes coming in the NHS and the need to link with organisations such as ADASS, Monitor, presumably new Clinical Commissioning Groups and professional organisations.

I hope there will be a strong voice for Social Work in the form of the College of Social Work in feeding information back to the CQC. I might be on a bit of a theme here but I think the CQC can learn an enormous amount about adult social care from social workers and I think they really need to utilise the knowledge we have of local areas and areas around quality. While I will contact the CQC with major concerns/complaints about residential homes, I’m not asked to feedback about niggles or, for that moment about fantastic services. I’d love to see these links work not just at a managerial level but between inspectors and social workers in the locations they regulate.

3. Continue building better relationships with the public

For a regulator to have public confidence, the public have to know what they do, what they are responsible for and what they are not responsible for. The CQC can do their best but if people don’t know about it or have different expectations, they are unlikely to get the message across positively.

New ‘Healthwatch’ organisations will promote local links and input into inspections and the CQC is building on its ‘Experts by Experience’ programme building people who use services and carers of those who use services into the framework. I watched a video from an inspector where she talked about using an ‘expert by experience’ and referred to a carer of a person with dementia who helped her in an inspection of a residential care home. I’d hope that people who have dementia and may have cognitive impairments are also built into the process of being experts by experience. It is vital that users and carers are involved and different models built to encourage this involvement but that assumptions are not made that because someone may  have a cognitive impairment that they cannot speak for themselves.

Improving access to reports would also be good. Improving the searchability of the CQC site would be a massive bonus. It’s become increasingly difficult to search and find information and seems to constantly take steps backwards in terms of usability.

I think it would be helpful if there were comment forms under each service for public to send information from the website directly to the relevant inspector. Inspectors could have a greater visibility online and using broader social media to communicate with the public – not just through PR people.

I want to know what inspectors do every day. I’d love to see a regular blog from an inspector (without needing to mention any specific services but just with broad themes – generally frontline blogs are more interesting than management blogs!)

4. Building relationships with organisations providing care

This is an area I probably have less experience in. It explains that the organisation wants to provide quality reports and improve the feedback given to providers by inspectors. It’s often about links and nurturing positive links over time but not allowing that to impede judgement when there are problems.

5. Strengthening the delivery of our unique responsibilities under the Mental Health and Mental Capacity Act

As an AMHP (Approved Mental Health Professional) and a BIA (Best Interests Assessor) I have a particular interest in matters relating to the Mental Health Act and the Mental Capacity Act.

I feel particularly the CQC have disappointed me (I know that will upset them!) about their knowledge or rather their lack of knowledge about Deprivation of Liberty Safeguards. I think good and thorough knowledge of DoLs should be a core question in every single inspection in every residential and nursing home and hospital in which they may apply. I  have come across too many home managers who really should know better show an appalling lack of current knowledge about DoLs and believe that there are many many unauthorised deprivations of liberty that inspectors should be able to challenge homes and hospitals about.

Personally, I’ve made a number of third party referrals for assessments under DoLs and that’s just by people either allocated to me or situations I come across when visiting people in care homes or hospitals – there must be many many more that go unchallenged because the law is so fluid and complicated and I don’t have any faith that the CQC and those representing them on the ground know it.

I’d like to see better links between inspectors and Best Interests Assessors after all, we (should) have significant expertise in applying the DoLs and perhaps we could shadow inspectors and ask the questions that they don’t know to ask until they are trained up at least.

This is three years too late.

6. Continuing our drive to become a high-performing organisation

This section is about building a learning organisation and working out ways to measure progress. I know the organisation works with ‘professional regulators’ but I think something has been lost in not using people with expertise in health and social care to carry out inspections and to rely on generic ‘auditing’ experience but I can’t see that changing.

I do think there are hopeful signs though in these new priorities and wish the organisation well – we need a good, strong regulator that has the faith of the sector and I feel we will need it all the more as the NHS changes.

I am increasingly thinking that more link, better conversations and more co-production are the ways forward for the CQC and for health and adult social care in general.

Do feedback on the consultation though – we need lots of voices. The CQC say that they welcome feedback through social media – so this is my own response!

photo by vivido @ Flickr

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Reporting on Deprivation of Liberty Safeguards

Skyline

If there’s one part of my work which is bound to cause confusion and misunderstanding, I’d say it’s the ‘Deprivation of Liberty Safeguards’ or DoLs as they are shortened to.

DoLs is a complicated corner of legislation that covers particularly those people who lack capacity to make decisions in relation to their care, accommodation and/or treatment (depending on the particular case) who are being ‘deprived of their liberty’ in a care or hospital setting. According to Article 5 of the European Convention of Human Rights, there is a residual ‘right to liberty’ so when someone is ‘deprived of their liberty’ (whether by being detained under the Mental Health Act or in prison) there has to be a legally prescribed process to appeal this and to ground the decision made. The ‘Bournewood Gap’ whereby there was no procedure to deprive people who lacked capacity to make decisions about residence/treatmetn/care was thus ‘closed’ by the introduction of these ‘Deprivation of Liberty Safeguards’ which provide a legal framework to authorise (and appeal, in legal terms at least) these orders.

To my knowledge, the majority of these orders particularly would be made in respect to people with learning disabilities or moderate to advanced dementia.

So yesterday the Department of Health reported produced it’s Third Annual Report (pdf) on data provided in respect to the amount of DoLs across England and the Independent published an article about the ‘huge spike’ in applications made – a jump by 27%.

There was some discussion last night on Twitter about whether this was ‘a good thing’ or not. The article rightly identifies the mess inherent in the current rather confusing and potentially inaccessible system, saying

DoLs are notorious among lawyers, care and health professionals for being overcomplicated and deeply misunderstood. Both the Care Quality Commission and the Mental Health Alliance have criticised the legislation with the latter describing the entire DoLS system as “not fit for purpose”

I’d join in with the criticism to an extent. The current system is overcomplex and the lack of a clear path through the system for service users and for family members is notorious and verging on oppressive. The routes of appeal particularly are unhelpful and challenging DoLs authorisations is a complex process. The other difficulty is that there is a lot of variance in definitions of what ‘deprivation of liberty’ means. This is something that courts reinterpret frequently however thinking back to the safeguards as exactly that – safeguards – mean that by the context of them narrowing we are at risk of providing these safeguards to fewer people.

However regardless of the complexity of the system, these ‘safeguards’ are not bad in themselves. They provide an extra layer of scrutiny into some of the care and treatment of those who lack capacity and can be a potentially very strong safeguard.

The problem is, well, one of them anyway, is that the care home or hospital where the deprivation of liberty is or may be taking place have to make the referral themselves.

Back to the Independent article, it explains that one of the problems is the massive discrepancies nationally and I would concur with this. This is what happens when ‘deprivation of liberty’ is poorly defined.

So

A breakdown of the figures show that whilst a local authority like Leicester made more than 400 applications last year, Reading only made one for the whole year whilst Hull made just three.

This seemed staggering to me. I am astonished/sceptical. Is it really possible that there has only been one person who is in Reading (or for whom Reading is responsible in terms of financing their placement) who was deprived of their liberty in a case or hospital setting over the course of an entire year?

Reading’s response is interesting in itself

A spokesman for Reading Borough Council gave no reason for why they had only authorised one DoLS last year but added: “We advise and support care homes to support vulnerable people, and only use DoLs as a last resort measure.

Well yes, but this more shows a lack of training and advise regarding legislation rather than something that Reading should be proud of. Because to me, it screams that there are potentially a lot of ‘unauthorised detentions’ knocking around.

The problem is that noone is likely to pick up on this.

The Deprivation of Liberty Safeguards are not ‘bad’ per se. They are safeguards and when they kick in, they require two independent assessors to provide a report explaining the terms of the deprivation as it exists, a limit to it and the reasons why it is in that persons’ best interest.

How could they be made better? (and do bear in mind, I’m venturing a little into ‘fantasy land’ here).

  • Streamlining the appeals process so that it is on a par with rights to appeal to tribunals under the Mental Health Act
  • Provide a mechanism to trigger referral that does not depend on the care home/hospital
  • Better define what Deprivation of Liberty is
  • Provide a regulation framework whereby regulators and inspectors are actually aware of ‘deprivation of liberty safeguards’ and the relevant legislation

Will that happen? Unlikely because there is little resourcing available but however much the phrase might make one shudder with confusion, the Deprivation of Liberty Safeguards are important.

They protect the rights of those who have little recourse and for whom some of the most important decisions are made by staff in hospitals and care homes and by local authorities. These need to be scrutinised and considered but the complexity of the system has been its undoing.

The presence of a DoLs authorisation in a care home is not a ‘bad’ sign. The absence of any (or few) DoLs authorisations in an entire local authority is not a ‘good’ sign.

Poorly administered or misunderstood DoLs’ authorisations are very bad though however used properly, it is very important to remember they are safeguards.

Reading’s pride at the existence of one authorisation over a year is not really something for them to be enormously proud of because I worry about the existence of unauthorised deprivations of liberty – not just in Reading (where obviously they advise and support care homes so well) but in all the care homes and hospitals in the country where those for whom Reading may be responsible are living.

Sometimes it isn’t as simple as saying ‘rising authorisations’ are bad or that they are ‘good. It’s about the subtlety of implementation and review.

Most worrying is the variation. If anything points to complex law and poor information sharing – it is that.

Something to learn for local authorities around the country, I hope.

And hopefully a lot more work for those who train people to understand and use the deprivation of liberty safeguards properly!

pic by garryknight Flickr

It’s all about the training! CQC and Deprivation of Liberty Safeguards

Inveraray Jail

Today, as Community Care reports, the CQC has published its annual report into the operation of ‘Deprivation of Liberty’ safeguards for 2010/11.

Deprivation of Liberty safeguards are a particular part of the Mental Capacity Act which allows a legal process of authorisation where there is felt to be a ‘deprivation of liberty’ in a care home or hospital related to someone who lacks the capacity to make a decision about whether they remain there or not. The process of decision-making relating to whether a Deprivation of Liberty is authorised revolves around the managing authority (the organisation which is potentially depriving the person of their liberty) and the supervisory body (the local authority or PCT (or whatever they are called now) where the person is or who is responsible for the care of that person (if, for example, they have been placed out of the local area the responsibility remains with the placing authority).  The decision is made on the basis of a number of assessments (six actually) which are undertaken by at least two people, one of whom must be a doctor and one of whom must be a ‘Best Interests Assessor’ (who can be a social worker, nurse, occupational therapist or psychologist).  The Best Interests Assessor, unsurprisingly, makes a recommendation not only on whether the deprivation is in the person’s best interest,  but whether the framework and care plan constitutes a deprivation of liberty at all.

So that’s DoLs in a nutshell. What have the CQC got to do with it? Well, amongst other things, monitoring these Deprivation of Liberty authorisations is another part of their work.
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What makes a good Best Interests Assessor?

Paperwork
Community Care carried an article a couple of days ago about Paul Burstow and the College of Social Work potentially turning their attention to the current training of Best Interests Assessors and finding the paucity of the system as it exists now to be in need of reform.

I’m a Best Interests Assessor as well as an AMHP (Approved Mental Health Professional). There’s a general awareness within the sector about what being an AMHP may be – there’s a lot less understanding about what is involved in being a Best Interests Assessor. The role itself is much newer having developed from the Deprivation of Liberty Safeguards which were a tacked onto the Mental Capacity Act (2005) by the Mental Health Act (1983) as amended 2007.

Lots of dates and lots of legislation but the role came into being in 2008 and created this role of ‘Best Interests Assessors’ who could be nurses, social workers, psychologists or occupational therapists with a couple of years experience who would be trained specifically to carry out particular assessments under these new legislative frameworks and make recommendations on the basis of these assessments as to whether someone who lacks capacity is being a) deprived of their liberty in a hospital or care home and b) whether it is in their best interests.

It can get enormously complicated but that’s perhaps, the reason that the focus has turned to the training of BIAs.

I was an ‘inaugural’ BIA, meaning that my training took place before the legislation had actually ‘gone live’. It took place over five days at postgraduate (masters) level training  delivered by a university and requiring an examined essay and presentation.

The problem is that we were then released into a ‘vacuum’ – there was an incredible feeling of insecurity about what these assessments required but there was also a hope that case law would eventually arrive to clarify! (oh, how deluded we all were!).

As it happens, case law is coming thick and fast now and each legislative decision adds layers of complexity. We have a better idea of the rate of referrals and the amount of time a good quality assessment takes so reappraising the course isn’t a bad idea.

Some AMHP courses now incorporate Best Interests Assessor training. I’m not sure I see this as necessary.

I’m not even sure more than five days is needed regarding an understanding of the legislation.

What is absolutely needed is constant and ongoing updates/training/discussions and forums to promote constant learning.

Currently there are no established and consistent  regulations concerning continuous professional development of BIAs – it is up to the local authorities to themselves decide. I’m fortunate that I have access to a host of BIA update training and a chance for specific supervision related to this role. I see it as fundamentally necessary, particularly at the rate with which the legislation framework changes, to be constantly in touch with the latest developments.

I also think that it is necessary for any new BIA (something that was impossible for me when I trained for obvious reasons) to have a similar experience as AMHPs have of ‘shadowing/fronting’ assessments with a more experienced BIA alongside them to get a feel for the type of work that i is.

This feels like a neglected corner of social work and social care in that it is a role that still is predominantly taken by social workers but few apart from those who actually do it, have an understanding of what it might entail.

We need to support each other on this – especially as so few of the trainers are actually Best Interests Assessors themselves – in my experience. This is an area where peer-led learning and understanding of the role could really move into the fore front.

I revert back to my premise that everyone working in social care with adults needs a better understanding of the Mental Capacity Act. That would form a better basis for those who do go on to become Best Interests Assessors.

I’ll be interested to see if Burstow picks this up. There’s a long way to go to improve both the Deprivation of Liberties Safeguards and the way that they are assessed and implemented. It’s quite right that the training and in particular professional development of BIAs is considered alongside this.

I’d be interested in what other BIAs thought about how training both initial and ongoing could be improved. Please feel free to leave comments!

Photo by anniebby

What is a Deprivation of Liberty? – Thoughts on Cheshire West and Chester Council v P

I accept that this post is about something of a niche in the corner of health and social care but it’s an area I have some interest in as I’m a Best Interests Assessor. This is going to be a long haul of a post so I’ll start this time with a glossary.

Deprivation of Liberty Safeguards – particular additions to the Mental Capacity Act which were supposed to fix a ‘gap’ (known as the Bournewood Gap – see below) in UK legislation where people without capacity could be ‘deprived of their liberty’ in a hospital or care home without leave to appeal.

Bournewood Gap – while it sounds like the name of a service station, it resulted from the HL v Bournewood case which was taken to the European Court of Human Rights and determined at a man (HL) with learning disabilities had been detained unlawfully in Bournewood Hospital. This case meant the UK needed to change its law to be compatible with the Human Rights Act.

Mental Capacity Act – broad legislation introduced in 2005 which included (on amendment of the 2007 Mental Health Act) these Deprivation of Liberty Safeguards

Best Interest Assessor – one of the minimum of two people involved in assessing whether a deprivation of liberty should be authorised or not. Usually a social worker, nurse or  occupational therapist – could also be a clinical psychologist (unusual). They will assess both whether there is a deprivation of liberty and whether it is in the person’s best interest.

Mental Health Assessor – the other person who would be involved in assessing whether a deprivation of liberty should be authorised. They will be a specially trained doctor. They assess, well, the Mental Health.

So back to the start again and ‘What is a deprivation of liberty?’ in this context? Considering I’m a Best Interests Assessor and one of my roles is to actually assess whether a deprivation of liberty is taking place or not, you’d think that I would have a great answer to add to my ‘summing up’ glossary above.

You’d be wrong. The definition of ‘deprivation of liberty’ is fuzzy and continues to get fuzzier.
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Opening Secret Courts

As it happens, I work a lot around issues of Mental Capacity in my day to day work so I have more than a passing interest in the dealings of the Court of Protection. The Court of Protection, you see, has a hand in many of the issues that might relate to decisions that are made in relation to people who lack capacity.

The Court of Protection is generally closed. The reasons being (and I make no judgement of the rightness or wrongness of this) is to protect those whose personal business arises in the court. As it relates to people who lack capacity in general, they are not able to make a decision about the reporting, or not, of their personal lives as they unfurl in the court and usually have not personally taken the active decision to go to court so should not (the argument goes, I suppose) deal with the publicity that surrounds it.

This is what is mean by ‘closed’ justice and ‘hidden’ courts that some newspapers, the Independent notably, campaign against.
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