Policy paper

Annex A: DHSC's responses to the Oversight Panel's recommendations

Published 21 July 2021

This was published under the 2019 to 2022 Johnson Conservative government

DHSC’s responses to the Oversight Panel’s recommendations regarding independent reviews for people with a learning disability and autistic people detained in long-term segregation.

Recommendation 1

The Royal College of Psychiatrists (RCPsych) should define good practice with respect to admission and discharge protocols including risk sharing, adherence to stopping over medication of people with a learning disability and/or autism (STOMP) and provision of psychiatrist support to Care Education and Treatment Reviews (C(E)TRs)/IC(E)TRs); membership of quality networks; competencies in working with people with learning disabilities/autistic people and people who have been traumatised; and to identify ‘red flags’ to alert commissioners and regulators to poor quality practice. (RCPsych).

DHSC’s response to recommendation 1

We strongly support this recommendation and are encouraged by the positive engagement that the Panel has had with the RCPsych on this recommendation. We will support continued engagement between the Panel and the College in the development of this work.

We are also encouraged by continued work between RCPsych and NHSE/I on the development of a clinical contract for new admissions.

Recommendation 2

DHSC to commission the National Institute for Health and Care Excellence (NICE) to develop enhanced minimum standards for LTS and inpatient environments. These standards must be specified and published with particular consideration given to therapeutic and sensory needs. (DHSC).

DHSC’s response to recommendation 2

We are supporting the Oversight Panel to engage NICE and submit the necessary evidence to support a decision on the development of guidance on quality standards for people with a learning disability or autistic people who may be likely to be subject to segregation.

Recommendation 3

To develop and pilot the use of bespoke intensive case management and capacity building teams. Cases will be referred by IC(E)TR chairs to NHS England (NHSE) for bespoke expert teams to be commissioned from preferred providers. These will be dedicated teams of experts that will support commissioners to resolve ‘blockages’ in the system that prevent individuals being moved to more appropriate, less restrictive settings, and will problem solve, case manage and build capability and capacity locally. (DHSC AND NHSE).

DHSC’s response to recommendation 3

We strongly support this recommendation and have worked with the Oversight Panel and NHSE to develop and agree a pilot proposal for a Senior Intervenor role, which has been modelled on NHSE’s Senior Children’s Intervenor pilot. We have agreed to support the implementation of this pilot as part of a wider package of £31 million to support learning disability and autism services, to address the diagnostic backlog as a result of the pandemic, and support intervention to prevent children and young people with learning disability, autism or both escalating into crisis.

Recommendation 4

The capability and skills of commissioners must be improved through mandatory training and the development and implementation of a commissioner code of practice/quality (standards) network. This training should include knowledge on what good support (that promotes positive quality of life outcomes for those with learning disability and those who are autistic) looks like. (DHSC and NHSE).

DHSC’s response to recommendation 4

We support the work being done by Skills for Care, Local Government Association (LGA), Association of Directors of Adult Social Services (ADASS) and NHSE/I to support and promote the national roll out of a qualification for commissioners working in health and social care. The qualification has a focus on understanding commissioning with and for people with a learning disability and autistic people. This is further supported by the co-produced LGA BtRS Peer reviews in several Transforming Care Partnerships (TCPs) which offers facilitated action planning sessions and bespoke support to address key actions and share best practice. We will support the roll out of the qualification to commissioners responsible for people in LTS.

Recommendation 5

DHSC’s Chief Social Worker is examining the safeguarding concerns that were raised as part of the IC(E)TR process. The findings will feed into work to improve the Safeguarding Code of Practice and provide clarity on current safeguarding processes for people in LTS and strengthen the mechanisms for intervention as part of this. The Children’s Chief Social Worker at the Department for Education (DfE) should be engaged in this process. (DHSC).

DHSC’s response to recommendation 5

DHSC’s Chief Social Worker is developing a practice guide for adult safeguarding teams, which will ensure statutory responses are informed by a consistent and person-centred approach. As part of this, consideration will be given to improving understanding of the safeguarding process and supporting good quality adult safeguarding. DHSC’s Chief Social Worker will be engaging with a wide range of sector partners, including the DfE’s Chief Social Worker for Children and Families, throughout this process.

Recommendation 6

There must be better transparency and consistency of data on the number of people who are segregated, so that those who are in scope of this work can be quickly and easily identified. This requires establishing and evaluating how and to whom LTS should be notified. (CQC and NHSE).

DHSC’s response to recommendation 6

We agree that the use of LTS is currently not reliably reported, and some providers and commissioners disagree on the definition of LTS. We support this recommendation and have supported similar recommendations in our response to the Joint Committee on Human Rights (JCHR) and to the CQC’s Out of sight - who cares? report. We are working closely with the CQC to develop a proposal to amend the Health and Social Care Act 2008 Regulated Activities regulations to improve reporting and transparency around the use of restrictive practice, including segregation.

Recommendation 7, 8, 9, 10 and 17

Recommendation 7

IC(E)TRs should continue and an independent review should be undertaken within 2 weeks of the commencement of segregation with progress in implementing the recommendations subject to independent review and scrutiny every 3 months or as advised by the review chair. (DHSC).

Recommendation 8

Clear and immediate action to be taken on IC(E)TRs and C(E)TR recommendations with formal reporting by commissioners to the DHSC and Oversight Panel if previous reviews’ recommendations have not been acted upon. (DHSC and NHSE).

Recommendation 9

Feedback from individuals and families must be sought following IC(E)TRs in addition to the feedback currently requested from commissioners and providers. (DHSC and NHSE).

Recommendation 10

These findings from IC(E)TRs will feed into NHSE’s review of C(E)TR policy review to ensure that C(E)TRs are more effective and serve as early interventions for people who may be on a pathway to LTS. (NHSE and DHSC).

Recommendation 17

An evaluation of IC(E)TRs must be conducted to support their continuation and identify any areas for improvement (DHSC, NHSE, CQC).

DHSC’s response to recommendation 7, 8, 9, 10 and 17

We are reviewing the IC(E)TR process. The outcomes of this review will inform the continuation of IC(E)TRs once safe to do so within the government COVID-19 guidelines. As part of continuing IC(E)TRs, the department, NHSE/I and the CQC are considering how the feedback process could be improved and how to strengthen engagement with individuals and families throughout the process. The design of subsequent IC(E)TRs will be agreed with the Oversight Panel.

Recommendation 11 and 12

Recommendation 11

Each person and each family of a person in LTS should have access to a genuinely independent advocate in line with the Mental Health Act (MHA) and Code of Practice. (Local government).

Recommendation 12

Advocates must demonstrate the necessary specialist skills to support people with a learning disability or autistic people. This will be supported through a requirement for advocates to undertake mandatory training, which must be co-delivered and coproduced by experts by experience. (DHSC and advocacy organisations).

DHSC’s response to recommendation 11 and 12

We agree that it is important to ensure high quality advocacy is available to all people with learning disabilities or autistic people in inpatient care, as well as their families. We are working with NHSE to undertake a review of current advocacy provision for people with a learning disability and autistic people to identify areas for improvement.

Recommendation 13, 14 and 20

Recommendation 13

The proposed reforms to the MHA must give due consideration to improving engagement and involvement of the individual and their family or nominated person in care and treatment reviews and in developing care and treatment plans. These should look at how advocacy can be provided independently on an opt-out basis. (DHSC).

Recommendation 14

DHSC should consult through the MHA White Paper on strengthening duties to make sure LA and CCG commissioners ensure an adequate supply of community services for people with a learning disability and autistic people. There should be a clear focus on funding requirements (for example a review of s117 effectiveness and a greater use of pooled budgets). (DHSC).

Recommendation 20

Consideration of the circumstances in which the MHA 1983 should apply to people with learning disabilities and/or autism must be considered as part of the MHA White Paper consultation. (DHSC).

DHSC’s response to recommendation 13, 14 and 20

These recommendations are linked to proposals which form part of the MHA White Paper published on 13 January 2021. The consultation closed on 21 April and the government response was published on 15 July.

Recommendation 15

DHSC should require commissioning bodies to provide assurance that the right value-led services are in place for this group of people and there should also be a requirement for commissioners to report spend more transparently to increase their accountability. (DHSC).

DHSC’s response to recommendation 15

We agree and committed to developing and issuing guidance in our response to the JCHR reports’ into detention in October 2020.

This guidance is intended to remind commissioning bodies of the importance of joint commissioning and making sure the right services are in place for people with a learning disability and autistic people. We have already produced commissioning guidance on services and support for autistic people and will be publishing this alongside the new all-age Autism Strategy.

In addition, we have commissioned Skills for Care to develop specific guidance on commissioning for people with a learning disability. This guidance will be available later this year, including encouraging commissioners to report spend more transparently. Through the MHA White Paper we have sought views on what can be done to overcome any challenges around reporting on spend for services for people with a learning disability and autistic people. We are carefully considering the responses received.

We will continue to consider how commissioning accountability can be strengthened. We agree with the principle that there should be a single named commissioner with oversight for commissioning for people with a learning disability and complex needs, as recommended by the CQC in their ‘Out of sight – who cares?’ report. DHSC is working with CQC and NHSE on proposals to put in place a stronger oversight arrangement and enhance accountability for commissioning with the, within the current legal framework.

Recommendation 16

There must be transparency about the process for allocating capital for housing. The process for accessing capital for housing should be simpler and faster to support discharge plans and ensure no unnecessary delays for individuals in LTS being moved into the community. (DHSC).

DHSC’s response to recommendation 16

We agree that housing is a key element to ensuring more people can be cared for in bespoke settings, in the community and closer to friends and family. The cross-government BtRS Delivery Board has identified housing as a priority workstream in order to improve care and support for people with a learning disability and autistic people. We will work with NHSE/I to make clearer how capital can be accessed.

Recommendation 18

The Oversight Panel appointments and current terms of reference to be extended for 3 months (to 31 March 2021). During this time DHSC and the Panel will develop and propose new terms of reference for its continuing role as part of the independent review process and to support the implementation of its proposed actions/recommendations. (DHSC).

DHSC’s response to recommendation 18

We support the continuation of the Oversight Panel and its work. Contracts have been extended and we will work with the Panel to agree revised terms of reference.

Recommendation 19

The Oversight Panel chair should be part of BtRS governance structures to represent the IC(E)TR work and support the delivery of urgent actions and solutions to improve care for people in LTS and prevent the use of segregation in future. (DHSC).

DHSC’s response to recommendation 19

We are pleased that Baroness Hollins and Alexis Quinn who are both members of the Oversight Panel, are also part of the BtRS Delivery Board.