capacity, consent, escalation and safe holding policy · 2019-02-21 · capacity, consent,...

Capacity, Consent, De-escalation and Safe Holding Policy v1.0

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Capacity, Consent, De-escalation and Safe Holding Policy

Version: 1.0

Status: Final

Title of originator/author: Deputy Director of Nursing and Quality

Name of responsible director: Jennifer Winslade, Executive Director of Nursing & Quality.

Developed/revised by group/committee and Date:

Approved by group/committee and Date:

Quality Committee- 15 November 2018

Effective date of issue: (1 month after approval date)

15 December 2018

Next annual review date: November 2019

Date Equality Impact Assessment Completed

Regulatory Requirement: CQC regulations as defined by the Health and Social Care Act 2008 (Regulated Activities) Regulations


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2014. With particular reference to:

Regulation 11: Need for consent

Regulation 13: Safeguarding service users from abuse and improper treatment


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Trust Policy Foreword SWASFT has a number of specific corporate responsibilities relating to patient and staff safety and wellbeing which should be included within all Trust policy and strategy, as a foreword inside the front cover:

Code of Conduct and Conflict of Interest Policy - The Trust Code of Conduct for Staff and its Conflict of Interest and Anti-Bribery policies set out the expectations of the Trust in respect of staff behaviour. SWASFT employees are expected to observe the principles of the Code of Conduct and these policies by declaring any gifts received or potential conflicts of interest in a timely manner, and upholding the Trust zero-tolerance to bribery.

Compassion in Practice – SWASFT will promote the values and behaviours within the Compassion in Practice model which provide an easily understood way to explain our role as professionals and care staff and to hold ourselves to account for the care and services that we provide. These values and behaviours reflect the Trust’s commitment to developing an outstanding service through the conduct and actions of all staff. SWASFT will encourage staff to demonstrate how they apply the core competencies of Care, Compassion, Competence, Communication, Courage, and Commitment to ensure our patients experience compassionate care.

Duty of Candour – SWASFT will, as far as is reasonably practicable, apply the statutory Duty of Candour to all reported incidents where the Trust believes it has caused moderate or severe harm or death to a patient. This entails providing the affected patient or next of kin (within strict timescales) with: all information known to date; an apology; an explanation about any investigation; written follow-up; reasonable support; and the outcome fed back in person (unless they do not want it). The only exception is where making contact could have a negative impact upon the next of kin. SWASFT employees are expected to support this process by highlighting (early) any incident where they believe harm may have been caused.

Equality Act 2010 and the Public Sector Equality Duty - SWASFT will act in accordance with the Equality Act 2010, which bans unfair treatment and helps achieve equal opportunities in the workplace. The Equality Duty has three aims, requiring public bodies to have due regard to: eliminating unlawful discrimination, harassment, victimization and any other conduct prohibited by the Act; advancing equality of opportunity between people who share a protected characteristic and people who do not share it; and fostering good relations between people who share a protected characteristic and people who do not share it. SWASFT employees are expected to observe Trust policy and the maintenance of a fair and equitable workplace.

Fit and Proper Persons – SWASFT has a statutory duty not to appoint a person or allow a person to continue to be an executive director or equivalent or a non-executive director


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under given circumstances. They must be: of good character; have the necessary qualifications, skills and experience; able to perform the work they are employed for (with reasonable adjustments); able to provide information required under Schedule 3 (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014). The definition of good character is not the test of having no criminal convictions but instead rests upon judgement as to whether the person’s character is such that they can be relied upon to do the right thing under all circumstances. This implies discretion for boards in reaching a decision and allows that people can change over time.

Health and Safety - SWASFT will, so far as is reasonably practicable, act in accordance with the Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999 and associated legislation and approved codes of practice. It will provide and maintain, so far as is reasonable, a working environment for employees which is safe, without risks to health, with adequate facilities and arrangements for health at work. SWASFT employees are expected to observe Trust policy and support the maintenance of a safe and healthy workplace.

Information Governance - SWASFT recognises that its records and information must managed, handled and protected in accordance with the requirements of the Data Protection Act 1998 and other legislation, not only to serve its business needs, but also to support the provision of highest quality patient care and ensure individual’s rights in respect of their personal data are observed. SWASFT employees are expected to respect their contact with personal or sensitive information and protect it in line with Trust policy.

NHS Constitution - SWASFT will adhere to the principles within the NHS Constitution including: the rights to which patients, public and staff are entitled; the pledges which the NHS is committed to uphold; and the duties which public, patients and staff owe to one another to ensure the NHS operates fairly and effectively. SWASFT employees are expected to uphold the duties set out in the Constitution.

Risk Management - SWASFT will maintain good risk management arrangements by all managers and staff by encouraging the active identification of risks, and eliminating those risks or reducing them to the lowest level that is reasonably practicable through appropriate control mechanisms. This is to ensure harm, damage and potential losses are avoided or minimized, and the continuing provision of high quality services to patients, stakeholders, employees and the public. SWASFT employees are expected to support the identification of risk by reporting adverse incidents or near misses through the Trust web-based incident reporting system.


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Contents

1 PURPOSE AND SCOPE ........................................................................... 6

2 DEFINITIONS ............................................................................................ 6

3 DUTIES, RESPONSIBILITIES, AND REPORTING ................................... 6

4 MENTAL CAPACITY ................................................................................. 7

5 CONSENT ................................................................................................. 8

6 DE-ESCALATION AND SAFE HOLDINGERROR! BOOKMARK NOT DEFINED.

7 MONITORING .......................................................................................... 11

8 REFERENCES ........................................................................................ 11

APPENDIX A - VERSION CONTROL SHEET ............................................ 12


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1 Purpose and scope

1.1 The purpose of this document is to define the Trust’s policy for compliance with regulatory and legal requirements in relation to mental capacity, consent, de-escalation and safe holding. Mental capacity, consent, de-escalation and safe holding are separate considerations which frequently overlap under statute and/or case law.

1.2 The scope of this policy is all services provided by the Trust which are defined as regulated activities as described by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 1. This includes all healthcare services provided by the Trust.

1.3 The Trust will have due regard for legislation covering mental capacity, consent, de-escalation and safe holding, including the following statutes:

Mental Capacity Act 2005 2

Human Rights Act 1998 3

Children Act 2004 4

Nice Guidance 108 – Decision –making and mental capacity

Mental Health Act 2007

2 Definitions

2.1 Trust is used to identify the South Western Ambulance Service NHS Foundation Trust

2.2 Staff is used to identify any person accessing the public on behalf of the Trust. It includes the following staff groups: Trust employed/paid staff, volunteers, commissioned service staff, primary care staff and any other relevant staff.

2.3 Person is used to identify a person, patient or any member of the public accessed by a member of staff.

3 Duties, Responsibilities, and Reporting

3.1 The Trust has a legal responsibility to ensure that the implementation of the Department of Health reference guide to consent for examination or treatment (second edition), Mental Capacity Act 2005 and Mental Health Act 2007 is in keeping with the respective Codes of Practice.

3.2 The Trust has a responsibility to meet the regulations as set out in the Health and Social Care Act 2008 and the Care Quality Commission Registration Regulations 2009.


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3.3 The Chief Executive has overall responsibility for the implementation of this policy.

3.4 The Executive Director for Nursing and Quality has been nominated by the Board to have executive clinical responsibility for the subjects covered by this policy.

3.5 The Clinical Director, as the professional paramedic lead for the Trust, is responsible for supporting the Medical Director and for providing advice on clinical and operational matters. The Clinical Director is responsible for managing the processes that give the Trust assurance that this policy is being implemented on by clinical staff.

3.6 The Clinical Development Manager (East) is the Trust lead for mental health, capacity, de-escalation and safe holding and is responsible for implementing and advising on developments to this policy. They are also responsible for the design and maintenance of CG28 and CG40.

3.7 The Deputy Director of Nursing is the Trust lead for consent and is responsible for implementing and advising on developments to this policy. They are also responsible for the design and maintenance of CG40

3.8 All staff are responsible for reading, understanding and adhering to this policy and the clinical guidelines which support it. In this policy, the term ‘staff’ refers to all employees and agents of the Trust.

3.9 All line managers are responsible for ensuring their staff has have access to appropriate training and development to ensure the skill and competence required to adhere to this policy.

4 Mental Capacity

4.1 Having mental capacity means that a person has the ability and competence to make their own decisions about any given situation or requirement. When making a decision, a person with capacity can

4.1.1 Understand the information which requires a decision

4.1.2 Retain the information to enable a decision to be made

4.1.3 Evaluate the information to enable a decision to be made

4.1.4 Communicate their decision

4.2 The Mental Capacity Act 2005 (MCA) covering England and Wales provides a statutory framework for people aged over 16 who lack capacity to make decisions or themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can make decisions, in


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which situations and how they should go about this. The Act applies to everyone who works in health and social care and puts the individual who lacks capacity at the heart of decision-making.

4.3 The Code of Practice for the Mental Capacity Act 2005 provides guidance for a range of people and professionals with different functions and duties under the Act, and has a statutory force.

4.4 The Trust will ensure that staff understand and work within the requirements of the Mental Capacity Act 2005 whenever they work with people who may lack the mental capacity to make some decisions.

4.5 The Trust will ensure that when a person lacks the mental capacity to consent to care and treatment, a best interest process will be followed in accordance with the Mental Capacity Act 2005. Other forms of authority such as advance decisions will also be taken into account.

4.6 The Trust will ensure that staff act at all times in accordance with the Mental Capacity Act 2005 Deprivation of Liberty Safeguards: Code of Practice 5 and the Mental Capacity Act 2005 Code of Practice 6.

4.7 The Trust will ensure that any deprivation of the liberty of a person who lacks mental capacity is authorised by the Court of Protection.

4.8 The Trust will ensure that staff will take all reasonable steps to make sure that people who use services and lack mental capacity are not subjected to any form of degradation or treated in a manner that may reasonably be viewed as degrading.

4.9 The Trust will provide a clinical guideline containing clear, accurate, and practical information, to aid staff to comply with this policy. At present the clinical guideline covering the subject of consent is CG28.

4.10 Staff should also consult the Mental Capacity Code of Practice directly.

4.11 All professionals have a duty to comply with the MCA code of practice.

4.12 The Trust supports the use of the mental capacity section of the NHS safeguarding app as an aide memoire for field use.

5 Consent

5.1 ‘Consent’ in the context of SWASFT and its day to day work is a person’s agreement for a healthcare professional to provide care. A person may indicate consent non-verbally (of example, by presenting an arm for a pulse to be taken),

http://intranet.swast.nhs.uk/Downloads/SWASFT%20downloads/Clinical/CG28%20Mental%20Health%20and%20Mental%20Capacity%20final.pdfhttp:/intranet.swast.nhs.uk/Downloads/SWASFT%20downloads/Clinical/CG28%20Mental%20Health%20and%20Mental%20Capacity%20final.pdf

https://www.microsoft.com/en-gb/p/nhs-safeguarding-guide/9nblggh432d7?activetab=pivot:overviewtab



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verbally or in writing. For the consent to be valid, the person must comply with all of the following

5.1.1 Be competent to make the particular decision

5.1.2 Have received sufficient information to make it

5.1.3 Not be acting under duress

5.2 The Trust will ensure that when a person is asked for their consent, information about the proposed care and treatment will be provided in a way that they can understand. Where appropriate, this will include information about the risks, complications and any alternatives. Where possible, a person with the necessary knowledge and understanding of the care and treatment will provide this information so that they can answer any questions about it to help the person consent to it.

5.3 The Trust will ensure that discussions about consent will be held in a way that meets people's communication needs. This may include the use of different formats or languages and may involve others such as the use of telephone translation facilities. Consent may be implied and include non-verbal communication such as sign language or by someone rolling up their sleeve to have their blood pressure taken or offering their hand when asked if they would like help to move.

5.4 The Trust will ensure that consent will be treated as a process that continues throughout the duration of care and treatment, recognising that it may be withheld and/or withdrawn at any time.

5.5 The Trust will ensure that when a person using a service, or a person is acting lawfully on their behalf refuses to give consent or withdraws it, all staff and agents providing care and treatment will respect this.

5.6 The Trust will ensure that where a person lacks mental capacity to make an informed decision, or give consent, staff and agents will act in accordance with the requirements of the Mental Capacity Act 2005 and associated code of practice.

5.7 The Trust will ensure that policies and procedures for obtaining consent to care and treatment will reflect current legislation and guidance, and staff and agents will follow them at all times.

5.8 The Trust will ensure that staff or agents who obtain the consent of people who use the service are familiar with the principles and codes of conduct associated with the Mental Capacity Act 2005, and are able to apply those when appropriate, for any of the people they are caring for.


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5.9 The Trust will provide a clinical guideline containing clear, accurate, and practical information, to aid staff to comply with this policy. At present, the clinical guideline covering the subject of consent is CG28 which addresses the practical application of consent in adults and children.

5.10 The Trust will ensure that devices and records which are used to capture consent contain accurate wording which is compliant with this policy.

5.11 The Trust supports the use of the consent section of the NHS safeguarding app as an aide memoire for field use.

6 De-escalation and Safe Holding

6.1 The Trust will ensure that all staff and agents will receive training that is relevant to their role and at a suitable level to make sure any control, de-escalation and safe holding or restrictive practices are only used when absolutely necessary, in line with current national guidance and good practice, and as a last resort. The Trust will make arrangements to keep staff up to date at appropriate intervals.

6.2 The Trust will ensure that if staff or agents use de-escalation and safe holding, the de-escalation and safe holding:

Is only used when absolutely necessary.

Is proportionate in relation to the risk of harm and the seriousness of that harm to the person using the service or another person.

Takes account of the assessment of the person's needs and their capacity to consent to such treatment.

Follows current legislation and guidance.

6.3 The Trust will regularly monitor and review the approach to, and use of, de-escalation and safe holding and restrictive practices.

6.4 Where a person lacks mental capacity to consent to the arrangements for their care or treatment, including depriving them of their liberty, the Trust will ensure that staff follow a best interest process in accordance with the Mental Capacity Act 2005, including the use of the Mental Capacity Act 2005 Deprivation of Liberty Safeguards, where appropriate.

6.5 The Trust will provide a clinical guideline containing clear, accurate, and practical information, to aid staff to comply with this policy. At present the clinical guideline covering the subject of De-escalation and Safe Holding is CG40

http://intranet.swast.nhs.uk/Downloads/SWASFT%20downloads/Clinical/CG28%20Mental%20Health%20and%20Mental%20Capacity%20final.pdf



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7 Monitoring

7.1 The Head of Research, Audit and Quality Improvement is responsible for ensuring that the annual audit plan fully monitors the implementation of this policy through audit, reporting the outcomes to the relevant committees or groups.

8 References

1. HM Government. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. 2014.

2. HM Government. Mental Capacity Act 2005 [Internet]. 2005 p. 1–92. Available from: http://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpga_20050009_en.pdf

3. HM Government. Human Rights Act 1998 (as amended in 2005). 2005.

4. HM Government. Children Act 2004 [Internet]. 2004. Available from: http://www.legislation.gov.uk/ukpga/2004/31/pdfs/ukpga_20040031_en.pdf

5. of Justice M. Mental Capacity Act 2005: Deprivation of liberty safeguards - Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice [Internet]. The Stationery Office for the Ministry of JusticePO Box 29, Norwich, NR3 1GN [email protected]; [cited 2013 Jan 30]. Available from: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476

6. Department for Constitutional Affairs. Mental Capacity Act 2005: Code of Practice. Vol. 3, Practice. 2007.


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Appendix A - Version Control Sheet

Version Date Author Summary of Changes

1.0

November 2018

New Policy

capacity, consent, escalation and safe holding policy · 2019-02-21 · capacity, consent,...

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