22nd February 2017

Is it OK to charge extra when a resident is subject to a DoLS authorisation?

The magazine Community Care has published an article, written by Andy McNicoll,  that is causing many of us to scratch our heads.

This piece is about a care home that charges extra fees for working with DoLS. The extra fees are £250 ‘if a DoLS authorisation is required’ and thereafter an annual £150.

A spokesman for the home is quoted by Community Care as saying:

“All our charges are transparent and advertised. All items of expense with regard to care and accommodation are taken into account when setting our fees. We believe that items of cost that are incurred individually should not be encompassed within our standard fees. Doing so would be expecting other residents unfairly to subsidise individuals.

“Residents requiring a DoLS have an appointed advocate or attorney with whom all matters of care and finance are discussed on an ongoing basis.

“The social care sector, in general, is currently under huge financial pressure. All tasks, from care to admin to facility, carry a cost and the introduction of additional requirements bring with it additional cost. The job has to be done.’

People responding to this article have found it impossible to believe that this charge is legal. Many people are pointing out that it’s a bit rich to deprive someone of their liberty and make them pay for the privilege.

Yet the CQC has replied to queries by explaining that there is no breach of Regulation 19, which is the one relating to charging: and this is undoubtedly right.

What does the regulation on fees say?

If you look at Reg.19, it lays out that, to be lawful, charges must be transparent and clearly understandable, so that the resident or their representative is aware of them.

To find Reg.19, and see the associated guidance, go to: http://www.cqc.org.uk/content/regulation-19-fees. You will see that the regulation in full is far from hard to understand, or perverse: indeed, it lays out conditions that appear only fair and reasonable.

And a quick look at the website of the care home concerned (which incidentally accepts only people with private funding) shows that their fees, including this requirement to pay extra if a DoLS authorisation is needed, are, as the spokesman said, ‘transparent and advertised’. There is no breach of Regulation 19 here.

Thinking aloud about the Mental Capacity Act (MCA)

As you know, the MCA is my main area of concern. And I must admit that when I first heard of these charges, my instant response was to feel most uncomfortable. So bear with me while I try to work out what is bothering me in this scenario, and why.

DoLS are part of the MCA

My starting point is that all providers of health and social care are bound to work within the MCA where it applies: that is true of everyone, in any sphere, who is paid to work with people who might lack mental capacity to make certain decisions. It applies to priests and imams, to the police, to people working in banks – there are no exceptions.

Compliance with the MCA means working within the five principles. So providers must start from assuming that each person can make decisions about how to live.  Then they must ‘bend over backwards’ to enable people to gain the capacity to make their own decisions. They must be careful not to assume someone lacks capacity for a decision simply because others regard their decision as ‘unwise or eccentric.’  (Hands up anyone who’s never done that!) And if all their efforts can’t enable someone to make a decision that needs making, they must understand what is meant by ‘best interests’, and always remember that the golden thread of the MCA is that any intervention must be the least restrictive possible.

Protection from liability

Providers, and their staff, gain protection from liability for actions they take when someone lacks capacity, provided they follow the MCA. The law says that it is as though the person had given consent with capacity for those actions, provided that the person taking the action reasonably believes both that:

  • The person lacks capacity to make a certain decision when it needs to be made, and
  • What they plan to do is in the best interests of the person.

Restraint

If staff need to restrain a person, in the best interests of that person, they must meet two further requirements to get protection from liability. They must ‘reasonably believe’ both that:

  • The action they propose is necessary to prevent harm to the person, and
  • The restraint is a proportionate response to how likely this harm is, and how serious it would be.

Deprivation of liberty

And the MCA goes on to say that, if these restraints (including of course restricting the person’s freedom of movement) amount to a deprivation of liberty, staff only have protection from liability if this is authorised, either through the deprivation of liberty safeguards (DoLS) or directly by the Court of Protection.

Costs and burdens of a DoLS application

The new form for a DoLS applications (Form 1) isn’t very taxing: a provider has all the information to complete it. See what you think:

https://www.adass.org.uk/media/4449/form-1-standard-and-urgent-request-final.docx

And the role of the representative is usually given to a close relative: surely, to meet the best interests requirement of the wider MCA, the provider would be in regular communication with relatives anyway?

It hardly needs saying, but local authorities don’t charge anything to the providers when they send the independent assessors along. Many providers are fascinated to observe the assessors exploring best interests, finding out, painstakingly, the wishes and feelings of the person, and looking for any less restrictive options to care safely for them.

DoLS: good for all concerned

Surely it’s a good feeling for a provider to have the protections of an authorisation?  They have not only shown their commitment to the human rights of the people they serve (and have the authorisation to prove that their care plan is in the best interests of the person). They have been able to share – and learn from -  best practice decision-making by experts; and they have also protected their staff from liability and from unwittingly breaking the law. It sounds to me like a great bargain.

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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