A challenging task for CCGs: Commissioning Community Care for Individuals with Challenging Behaviour

CCGs face a difficult task when addressing the legal and practical considerations in re-housing individuals with challenging behaviour who fall under the NHS Continuing Healthcare framework in the community. These considerations include the complex interchange between numerous legal frameworks along with considering how best to meet the therapeutic needs of the individual. These circumstances will become increasingly widespread following a number of high profile care home closures requiring individuals to be relocated; often into supported living accommodation. 

This article sets the legal aspects for CCGs to reflect on in such situations:

Nuisance

Does the individual's challenging behaviour amount to a "statutory nuisance" under the Environmental Protection Act 1990?

• A typical example of this is the level of noise being emitted from the individual's property and how this may impact on other residents in the local community. What amounts to a statutory nuisance may depend on an assessment by the Local Authority's Environmental Health Officer.
• Factors relevant to the assessment will include – the location; the time of day; the frequency; the duration; the intensity; and the number of people affected.
• If it is found that the individual's behaviour amounts to a statutory nuisance then an abatement notice can be served on the individual. Failure to comply with the notice is a criminal offence.
• If a complaint is made to the Local Authority the CCG should liaise closely with the Local Authority to ascertain whether reasonable steps can be taken to prevent or reduce the noise or impact of the individual's behaviour. This may include greater support for the individual such as counselling or sound proofing the individual's home by the landlord or Local Authority.

Capacity and Best Interests

Does the individual have capacity to make decisions in relation to where they live, the care and treatment that they receive and regarding their finances and affairs?

• If there are concerns that an individual may lack capacity, then a formal capacity assessment should be conducted in accordance with the Mental Capacity Act 2005 framework.
• If the individual is assessed to lack capacity, then any decision regarding these aspects must be taken in his/her best interests.
• The CCG must follow the best interests framework set out in the Mental Capacity Act taking into account all the circumstances in making the decision as to whether or not the individual should remain in their current placement or be placed elsewhere.
• Key considerations will include – the risk of harassment from discontented neighbours if he / she remains or is moved to a new locality; financial / practical implications by ending the tenancy; the risk of the individual 's health deteriorating; and the likelihood that a similar property can be identified and adapted appropriately to meet the individual 's needs.
• If there is a dispute as to what is in the individual's best interests, then an application may need to be made to the Court of Protection to resolve the dispute.

Court of Protection Guidance on Tenancy Agreements

• Although the Mental Capacity Act 2005 enables the making of certain decisions without the need to obtain any formal authority to act, it does not extend to signing legal documents, such as tenancy agreements.
• Someone can only sign a tenancy agreement on behalf of the person who lacks capacity if they are: an Attorney under a registered Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA); a Deputy appointed by the Court of Protection; or someone else authorised to sign by the Court of Protection.
• If the individual has a Deputy or Attorney authorised to make these decisions on their behalf, then they can terminate or enter into a tenancy agreement without further authorisation from the court. However, any such decision to terminate and/or enter into a new tenancy agreement must be in that person's best interests.
• As above, if there is a dispute regarding what is in the patient's best interests then an application to the Court of Protection may need to be made.

 Commissioning Responsibilities

• The CCG is responsible for commissioning a safe and viable placement for the individual that meets their assessed needs. Therefore, the CCG must be satisfied that the impact of any dispute about the individual's behaviour is not prejudicial to the placement. If the CCG is not satisfied it must give detailed consideration to whether it would be in the individual's best interests to be moved to an alternative placement.

Data Protection Act

• CCGs must also exercise extreme caution when considering whether information about the individual and his/her medical condition can be shared with other stakeholders or third parties.
• Such information should only be processed in accordance with the strict legal framework set out in the Data Protection Act 1998. Failure to do so is an offence.

Other considerations

• The CCG should be investigating why the individual is exhibiting this challenging behaviour. For example, is this related to pain, anxiety, frustration or general behavioural issues? Perhaps the behaviour denotes a problem that the individual is not able to communicate in other ways.
• Can anything be done to assist the individual therapeutically in managing/reducing their behaviour? For example, what de-escalation techniques are being used and to what success?

Summary

CCGs have a number of difficult considerations to take into account when deciding on the safety and viability of a community placement. The complexity is enhanced when considering the placement of individuals with challenging behaviour as often their behaviour may prejudice the placement. The CCG must consider each individual on their own merits and execute a plan centred around that individual's needs.

Please contact Will Pickles or Jane Bennett for further information.