To: NHS England Regional Chief Nursing Directorate Nurses and Area Team Directors Skipton House of Nursing 80 London Road London SE1 6LH
21 July 2014
Area Team Bulletin Ref. No. 01918 Dear Colleagues,
Re: Letter regarding MCA programme funding allocations for 2014/15
1. In March 2014 the House of Lords Select Committee (HoLSC) published their final report following a 10 month post-legislative scrutiny of the Mental Capacity Act 2005. This concluded that while the Mental Capacity Act (MCA) was a “visionary piece of legislation”, the Act has “suffered from a lack of awareness and a lack of understanding”. In particular it cited significant issues in implementation of the MCA across all sectors including health and social care due to professional and organisational cultures of risk aversion and paternalism. They also found that the Deprivation of Liberty Safeguards (DoLS) are not “fit for purpose” and should be replaced by provisions that are easy to understand and implement.
2. The Government published its response on 11 June which considered the 39 recommendations of the House of Lords and sets out a system-wide programme of work over the coming year and beyond to bring about improvement in understanding and implementation of the MCA1.
3. Following the publication of these reports, the National Safeguarding Steering Group has established a working group to address the recommendations for which NHS England is responsible or has a significant contribution towards. A work-plan has been developed that sets out a range of actions at a national level to support delivery. Specifically the group will focus on the following:
Ensuring commissioning system embeds the practice required to implement the MCA. Ensuring commissioners have an increased understanding of MCA and DoLS and work effectively with providers to improve practice. Improving monitoring of the implementation of the Act.
4. It is important to emphasise that the Act supports and re-enforces the wider
1 A summary of key findings is set out in appendix 3
1 duties set out in the Health and Social Care Act to promote the involvement of patients and carers in decisions about their care and treatment. As well as being central to wider programmes such as the 6C’s which place patients at the heart of care and seek to promote a personalised approach.
5. NHS England recognises that much of the implementation of the MCA is carried out at a local level. Programme funding is being made available for 2014-15 to Area Teams to work with, and across, their local system of commissioner and provider organisations to address the recommendations of the House of Lords report. This is consistent with the Area Team role to; commission high quality primary care services, support and develop CCGs, assess and assure performance; and manage and cultivate local partnerships and stakeholder relationships.
6. It should be noted that this programme funding has been secured specifically to support the implementation of the programme of work as set out in the Government’s response to the House of Lords Inquiry. The published Accountability and Assurance framework2 is clear that all safeguarding responsibilities, including compliance with MCA, form part of the core functions for each organisation and must therefore be discharged within agreed baseline funding.
7. The areas of focus for local working are: Awareness raising and training activity – with specific areas for improvement identified as raising awareness across those services that are directly commissioned by NHS England including GPs, other primary care services like dentists and specialised services. This includes training for commissioners and providers who both share responsibility for ensuring these services are MCA compliant. Re-training those health professionals whose BIA status has lapsed and training of additional numbers of health professionals from provider services as best interest assessors. Raising awareness of advance decisions and embedding discussions about patients wants and wishes into relevant patient pathways and increasing awareness of frontline staff of Lasting Power of Attorneys (LPAs) and deputyships including promoting use of the electronic register of these when this becomes available in late 2014. Development of local assurance mechanisms that provide feedback on the degree to which compliance is in place across the local system as well as identifying any themes or gaps to be addressed through the national programme. Identifying and contributing to a repository of best practice including capturing case studies to be shared more widely. Supporting local networks and groups of professionals to come together to share expertise, ideas and best practice. Developing and sharing mechanisms to use the commissioning process to improve outcomes for individuals lacking capacity – through joined up working between commissioners and providers which ensures patients at the heart of decision making.
2 Safeguarding Vulnerable People in the Reformed NHS - Accountability and Assurance Framework, Mar 2013
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8. Area Teams have each been allocated a proportion of the programme budget to support the implementation of the Government response on behalf of their local system. However, in order to help us track the national programme Area Team Directors of Nursing, or their nominee, are asked to provide a brief overview of their plans for using this money by 15 Sept 2014 using the form provided in appendix 1. The funding is to support provider and commissioner development and to deliver increased understanding of, and compliance with, the Mental Capacity Act. This allocation is based on the overall adult population and Area Teams will need to work with NHS England commissioners, CCGs, local authorities and local providers of services to decide the best way to use this funding ie to meet specific local needs as well as the national areas of focus set out in paragraph 7. Budget codes and allocations are set out in appendix 2.
9. In order to monitor the impact of this funding the following outputs will be required from each area at the end of the financial year. This will enable NHS England to demonstrate our contribution to the Government’s plan as well as ensuring value for money:
Submission of a self-assessment summary report from each Area Team for the period 2014/15. This report will give an assessment of the extent to which MCA is complied with within their geographical area and be discussed and signed off by the local QSG. This will include reference to any evidence used to reach this conclusion and any gaps or proposed future activity for 2015/16. This will take into account the views of the commissioners and providers across the local system. Submission of at least two case studies from the each area for sharing through the national programme - one of MCA good practice and one of good practice in implementing the least restrictive option. Numbers of health professionals trained as Best Interest Assessors in 2014/15
10. We will also be contacting Area Team Directors of Nursing later in the financial year to further discuss the format for providing the year end outputs and confirm the deadline.
11. This funding is only available for financial year 2014/15 and is non-recurrent. However, this is a priority area for NHS England and is likely to remain so in the future but programme funding is subject to agreement each year through the business planning and budget setting process.
12. Any queries should be directed to Jane O’Daly, Safeguarding Programme Manager ([email protected]).
Yours sincerely
Hilary Garratt Director of Nursing - Commissioning and Health Improvement
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Appendix 1- MCA House of Lords Implementation Programme: outline plans for use of funding.
Name, email and phone number of Area Team MCA Lead Please set out your plans for using this funding locally including: how funding will be devolved to other organisations as appropriate how funding will support compliance with the MCA and improved outcomes for patients who lack capacity How you are addressing the areas of focus listed in para 7.
NB Please provide a high level summary only using no more than 500 words and making use of bullets where possible.
Please submit your outline plan to [email protected] by 15 Sept 2014.
If you have any questions or suggestions about the national programme these can also be submitted to Jane O’Daly, Safeguarding Programme Manager ([email protected])
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Appendix 2 - Funding allocation by Area Team
Area Team Region Total Area Team AT Budget Popn3 funding Code Arden, Herefordshire and Worcestershire Midlands & East 1,700,128 £150,607 117751 Bath, Gloucestershire, Swindon and South 1,531,974 £135,711 121612 Wiltshire Birmingham and the Black Country Midlands & East 2,630,145 £232,993 128018 Bristol, Nth Somerset, Somerset South 1,519,214 £134,580 128042 & South Gloucestershire Cheshire, Warrington and Wirral North 1,286,138 £113,933 128023 Cumbria, Northumberland, Tyne and North 1,997,104 £176,914 128027 Wear Derbyshire and Nottinghamshire Midlands & East 2,062,328 £182,692 118405 Devon, Cornwall and Isles of Scilly South 1,758,978 £155,820 128057 Durham, Darlington and Tees North 1,229,567 £108,922 115001 East Anglia Midlands & East 2,542,381 £225,218 128001 Essex Midlands & East 1,805,023 £159,899 118901 Greater Manchester North 2,903,292 £257,190 128004 Hertfordshire and the South Midlands Midlands & East 2,862,995 £253,620 119151 Kent and Medway South 1,811,193 £160,445 128063 Lancashire North 1,522,773 £134,896 116368 Leicestershire and Lincolnshire Midlands & East 1,835,125 £162,565 127678 London London 9,077,764 £804,158 128037 Merseyside North 1,262,875 £111,872 128012 North Yorkshire and Humber North 1,696,962 £150,326 115884 Shropshire and Staffordshire Midlands & East 1,600,618 £141,792 117501 South Yorkshire and Bassetlaw North 1,517,760 £134,452 128032 Surrey and Sussex South 2,841,734 £251,736 128047 Thames Valley South 2,187,690 £193,798 128052 Wessex South 2,803,980 £248,392 128050 West Yorkshire North 2,454,852 £217,464 115556 England 56,442,593 £5,000,000
NB Funding will be transferred at month 5
3 Source: quarterly snapshot from the GP Payments system maintained by the Health and Social Care Information Centre (HSCIC). This release was extracted on 1 April 2014. 5
Appendix 3 - Summary of House of Lords Government response
Executive Summary from the Government Response to the HoL Select Committee Report on the MCA
th On the 13 March 2014, the House of Lords Select Committee on the Mental Capacity Act 2005 published the report of its ten‐month investigation. The Government is grateful to the Committee for its invaluable work. We agree with the Committee’s overall finding: that while the Mental Capacity Act (MCA) was a “visionary piece of legislation”, the Act has “suffered from a lack of awareness and a lack of understanding”.
The Government, together with our partners, have closely considered the 39 recommendations of the House of Lords together with inputs and insights received from our discussions with a wide range of stakeholders. This document presents our response and sets out a system‐wide programme of work over the coming year and beyond that we believe will realise a real improvement in implementation of the MCA.
We intend to ensure that implementation is strengthened and co‐ordinated and will consider the case for establishing a new independently chaired Mental Capacity Advisory Board. A national Board and its independent chair could also advocate for and raise awareness of the MCA, gather views on priority MCA issues and opportunities and advise the Government on key priorities for action. The Government will hold implementing partners to account, ensuring they deliver against their commitments and responsibilities.
We share the House of Lords’ concern at the lack of awareness of the MCA. Everyone has responsibility for raising awareness and every professional who works with individuals who may lack capacity should regard the responsibility to familiarise themselves with the provisions of the MCA as a basic professional duty. The Department of Health will commission a review of current guidance and tools to determine what represents the “gold standard” that can then be widely disseminated. In 2015, the Government will host a national event to both raise awareness of the Act and to hear the views of professionals and the public as to how we can further develop our programme of work.
We will take a comprehensive approach to promoting implementation. Professional training is a priority and the Government, together with Health Education England and the Royal College of General Practitioners, have identified immediate actions. NHS England and the Association of Adult Directors of Social Care (ADASS) have committed to lead on work examining the important role that commissioning has to play in encouraging a culture in keeping with the principles of the MCA. The Care Quality Commission (CQC) has prioritised the MCA in the fundamental revision of its regulation and inspection model.
The Government will ask the Law Commission to consult on and potentially draft a new legislative framework that would allow for the authorisation of a best interests
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deprivation of liberty in supported living arrangements. In light of this, the Law Commission will consider any improvements that might be made to the Deprivation of Liberty Safeguards (DoLS). In the short term, ADASS will lead a task group to consider the implications of the recent Supreme Court judgment on deprivation of liberty and the Government will commission a revision of the current standard forms that support the DoLS process.
The Office of the Public Guardian (OPG) is undertaking significant work to increase the level of awareness and understanding of Lasting Powers of Attorneys (LPAs) – working with NHS England to provide guidance for front‐line staff and with the CQC to make sure questions on LPAs feature in inspections of health and social care providers. HM Courts and Tribunal Service has committed to increasing the staff complement of the Court of Protection and the Government has committed to the revision of the Court of Protection Rules – with a view to having new rules in place by April 2015.
The Government believes the MCA is an Act of fundamental importance which we are committed to embedding across our work programmes. We describe early progress in respect of the Care Act 2014, the Prime Minister’s Challenge on Dementia and our responses to the failings at Winterbourne View and Mid‐Staffordshire NHS Foundation Trust.
We urge that all those with a role to play in implementing the MCA seize the opportunity provided by the House of Lords report and this Government response. If we maintain recent momentum and implement the programme of work we describe in this report we believe that we can create a culture that values every voice and respects every right of those who may lack capacity.
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