Rights at Risk

Rights at risk staff manual amendments V1 7.2.15

Rights at Risk
Shared Rights, Risk and Recovery Assessment and Plan

Authors

Christy Laganis (Trainee Clinical Psychologist, University of Liverpool/Mersey Care NHS Trust)

Claire Dowling (Assistant Psychologist, Mersey Care NHS Trust)

Bethan Roberts (Trainee Clinical Psychologist, University of Lancaster)

Sophie Howes (Senior Human Rights Officer, British Institute of Human Rights)

Dr Sarah Butchard (Clinical Psychologist, Mersey Care NHS Trust)

Dr Beth Greenhill (Senior Clinical Tutor/ Clinical Psychologist, University of Liverpool/Mersey Care NHS Trust)

Acknowledgements

The authors would like to thank Professor Richard Whittington, Professor John Read, Dr Caroline Logan, Dr James Riley, Dr Sarah Hamner and Vikki Harrison for their helpful comments and feedback during the development of this resource. We would also like to thank the staff and service users from Mersey Care NHS Trust who have been involved in developing and piloting this resource.

We would like to acknowledge the input into this element of the project made by Lyndsey Holt, Khowla Jomar,Emma Fordeand James Dudley who were part of the overall project team and all those who took part in the steering groups. We would also like to thank Richard Whitehead for the support shown by him to the authors throughout the project.

We would like to know your views on how this resource can be improved and further developed. To give feedback, or to get involved in further piloting work or adaptation please contact Beth Greenhill at

© <2015> Equality and Human Rights Commission. All rights reserved. This material may be copied for use within Higher Education Institutions on the understanding that the authors and the University of Liverpool are acknowledged as the developer of the material on all copies, that this copyright statement is retained and that the intellectual property rights of the authors and of the Equality and Human Rights Commission are acknowledged.

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Rights at risk staff manual amendments V1 7.2.15

Contents

Contents 2

Introduction 5

References 6

Who is this guide for? 7

How to use this guide 7

Rights 8

Why take a human rights based approach? 8

Human rights and the law: The Human Rights Act 8

International and European human rights law 8

The Human Rights Act 8

Key rights in the Human Rights Act in health and social care 9

Article 2: The right to life 9

Article 3: The right to be free from torture and inhuman or degrading treatment 9

Article 5: The right to liberty 9

Article 8: The right to family life, private life, home and correspondence. 9

Article 14: The right not to be discriminated against in relation to any of the rights contained in the European Convention. 10

The FREDA principles 10

A human rights based approach 10

The Mental Health Act and the Mental Capacity Act 11

Mental Health Act 11

The Mental Capacity Act 12

Human rights and Positive Behaviour Support 13

References 15

Risk 16

Risk in mental health services 16

Existing approaches to risk assessment: Static and dynamic risk 16

Best practice in managing risk 17

Box 1: The 16 Best Practice in Managing Risk Principles 18

Positive Risk Management 18

Box 2: What is positive risk management? 18

Risk sharing partnerships 19

Risk formulation 19

Protective factors and coping strategies 20

Care programme approach to risk assessment 20

References 22

How to complete the Rights at risk: Shared rights, risk and recovery plan 24

Why have we done it the way we have? 24

Positive Risk Management 24

Ownership of Risk 25

Relationships 25

Criminality and Mental Health 25

Providing a rationale for the questions we ask 26

Literacy in the General Population 26

Guidance notes 27

Facilitating Service User Involvement 28

Where to obtain the information from? 29

Assessing risk: Likelihood and Severity 30

2.3 Completing the risk assessment 32

2.4 Recording and worked example 33

Risks Areas: Questions, prompts and human rights involved 35

Section 1: Advanced Statement 35

Section 2: Risks to self 36

Please turn to ‘Section 2: Risks to self’ in the shared information booklet 36

1) Physical health 36

2) Taking medication 38

3) Mental Health 39

4) Self-neglect (not looking after myself) 40

5) Self-harm (Hurting or harming myself) 41

6) Suicide 42

7) Engagement (Not wanting help from services) 43

Rationale: 43

8) Alcohol/Substance misuse 44

9) Transport (private) 45

10) Safety at home 46

Section 3: Risks to others 47

1) People you Care for: Dependants and Children 47

2) Verbal aggression/ Intimidation 49

3) Physical violence (no weapons) 50

4) Physical Violence (weapons) 51

5) Sexually inappropriate behaviour 52

6) Criminal or Antisocial acts 53

7) Arson (Starting Fires) 54

8) Difficulties with relationships 54

Section 4: Risk from others 56

1) Discrimination 56

2) Physical abuse by others 58

3) Sexual abuse by others 58

4) Financial abuse by others 60

5) Emotional abuse by others 61

Section 5) Protective factors and coping strategies 61

1) Protective factors 62

2) Coping Strategies 63

Section 6: Human rights based formulation: 65

Section 7: Shared rights, risk and recovery plan 68

Appendix A 69

Box 1: The 16 Best Practice in Managing Risk Principles 69

Introduction

A family of progressive approaches, inspired by service user movements, is leading a paradigm shift in mental health services. Recovery, rights, person-centred planning, Positive Behaviour Support and service user involvement are changing services for the better. However, the influence of these ideas is often missing from risk assessment and management.

Service users often feel their perspectives are excluded from risk assessment and management (1, 2) and that risk processes are an obstacle to recovery (3). Although human rights principles inform the Care Quality Commission’s (4) evaluation of mental health services, and positive risk management advocates have created risk alliances between service users and staff (5, 6), there is little to practically guide the clinician who wants to adopt an empowering, relational and collaborative approach to risk.

‘Rights at risk’ is a practical toolkit for developing risk sharing alliances using a human rights based approach to risk. ‘Rights at risk’ maximises service user participation in the risk assessment and management process. ‘Rights at risk’ aims to balance the human rights of service users, their carers, and members of their communities; so risk can be managed more positively. Using a human rights based approach allows ‘Rights at risk’ to integrate complex legal and policy drivers, including the Mental Health Act, the Mental Capacity Act and recent government recommendations on using Positive Behaviour Support to reduce restraint and restrictive practice (7).

The approach to risk outlined here has been adopted for a number of years in learning disability services through the ‘Keeping Me Safe and Well Risk Assessment’ (8). We are now applying our learning to mental health services. Bringing human rights to life in risk assessment is a work in progress, but one in which we hope this risk sharing plan and guide will be a significant milestone.

References

1. Sheldon, K. (2011). Service User’s Experiences of Risk and Risk Management. In R. Whittington, & C. Logan, (Eds.) Self-harm and violence: Towards best practice in managing risk in mental health services (p. 11-34). London: Wiley.
2. Langan, J. & Lindow, V. (2004). Living with risk: Mental health service user involvement in risk assessment and management. Bristol: Policy Press.
3. Boardman, J. & Roberts, G. (2009). Risk, Safety and Recovery. ImRoc briefing paper. Retrieved from: http://www.centreformentalhealth.org.uk/pdfs/ImROC-Briefing-Risk-Safety-and-Recovery.pdf. [Accessed 4 Jan 2015].
4. Care Quality Commission. (2014). Human rights approach for our regulation of health and social care services. Retrieved from: http://www.cqc.org.uk/sites/default/files/20140925_our_human_rights_approach_final.pdf. [Accessed 4 Jan 2015].
5. Department of Health. (2007). Best practice in managing risk: Principles and evidence for best practice in the assessment and management of risk to self and others in mental health services. London: Department of Health.
6. Whittington, R. & Logan, C. (2011). Self-Harm and Violence: Towards Best Practice in Managing Risk in Mental Health Services. London: Wiley.
7. Department of Health. (2014). Positive and proactive care: Reducing the need for restrictive interventions. London: The Stationary Office.
8. Lee, A., Kaur K., Cookson, A. & Greenhill, B. (2008). The Keeping Me Safe and Well Screen (KMSAW), 2nd edn. Equality & Human Rights Commission. Available from https://www.ewin.nhs.uk/resources/item/477/keeping-me-safe-and-well-kmsaw-screen . [Accessed 27 February 2015].

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Who is this guide for?

This guide is for use by appropriately qualified mental health professionals who want to create risk sharing alliances with service users. Appropriately qualified in this instance refers to any healthcare professional registered with the Health and Care Professions Council, Nursing and Midwifery Council, or General Medical Council and tasked with assessing clinical risk as part of their professional role.

The use of this guide is not limited to any particular setting, for example inpatient or community.

How to use this guide

This staff manual provides professionals with background information about why human rights based approaches are integral to exploring risk issues. It then provides guidance on how to conduct a risk assessment jointly with a service user. The manual consists of three main sections. The first section, ‘Rights’, outlines the human rights background to the staff manual. The second section ‘Risk’, explains key concepts and best practice in risk assessment and management. The third section, the practical guidance, describes how to complete the ‘Rights at risk’ shared rights, risk and recovery plan before detailing questions, prompts and human rights involved in each of the risk areas.

Rights

In this section we explain the basic ideas of a human rights based approach. We argue that a human rights approach to risk has a number of advantages. We describe the Human Rights Act (HRA) and the underlying principles and values it expresses. We also explain how the Human Rights Act fits with key legislation in mental health services such as the Mental Health Act and the Mental Capacity Act. Finally, we consider how human rights approaches can be seen as integral to Positive Behaviour Support.

Why take a human rights based approach?

There are many good reasons to adopt a human rights based approach to risk.

Human rights based approaches can provide a robust and unifying framework for the disparate strands of policy and law which are relevant to risk assessment (1). In the UK, new legislation, including mental health law, must be compatible with the European Convention on Human Rights, unless a declaration of incompatibility is made. This is because of the Human Rights Act. Many of the policies in mental health services are informed by the human rights principles enshrined in the Human Rights Act. The statutory weight of human rights can strengthen person-centered approaches to risk, which are often the first casualty of competing agendas such as risk management or time and financial pressures (2).

The legal duties on and regulation of the National Health Service (NHS) also suggest human rights should be included in risk processes. Under section 6 of the Human Rights Act, it is unlawful for a public authority, like the NHS, to act incompatibly with an ECHR right (unless required to do so by primary legislation). Under section 7, anyone whose rights have been violated can bring proceedings against the public authority.

Public authorities not only have to refrain from breaching human rights (‘negative’ obligations) but also, in certain well-defined circumstances, have to take preventative steps to secure people’s human rights, even if the threat is from a private party and not the authority itself (‘positive’ obligations). This is because of the Human Rights Act. The health care regulator, the Care Quality Commission (CQC), views respecting diversity, promoting equality and ensuring human rights as a key means of securing quality services for service users and has developed a human rights approach to the regulation of care services (3).

There is also an economic case for human rights based approaches. Human rights approaches emphasise a preventative, proactive, approach which is usually cheaper than more restrictive and invasive practice. For example, responding to a service user’s ‘behaviours which challenge’ at home in their local community with a positive behaviour support approach involving family and carers is far less expensive than removing the person to an ‘out of area’ placement, such as Winterbourne View, which can cost in the region of £180,000 per year (4).

Human rights and the law:

Human rights in the UK can be defined in law at three levels; internationally, at European level, and within UK law.

International and European human rights law

Although other international human rights law is relevant to UK health care practices, for example the UN Convention on The Rights of Person with Disabilities, the most accessible and relevant for the UK context is the ECHR (5). The ECHR also has the greatest legal force, because of the Human Rights Act.

The Human Rights Act

The Human Rights Act (1998) incorporated into UK law most of the rights detailed in the ECHR and, as such, is the main legal source of human rights protection in the UK.

Table 1: Articles of the European Convention on Human Rights (ECHR)

The rights of the ECHR included in the Human Rights Act (1998) are:
Article 2: The right to life
Article 3: The right not to be tortured or treated in an inhuman or degrading way
Article 4: The right to be free from slavery or forced labour
Article 5: The right to liberty
Article 6: The right to a fair trial
Article 7: The right to no punishment without law
Article 8: The right to respect for private and family life, home and correspondence
Article 9: The right to freedom of thought, conscience and religion
Article 10: The right to freedom of expression
Article 11: The right to freedom of assembly and association
Article 12: The right to marry and found a family
Article 14: The right not to be discriminated against in relation to any of the rights contained in the ECHR.
Article 1 Protocol 1: The right to peaceful enjoyment of possessions
Article 2 Protocol 1: The right to education
Article 3 Protocol 1: The right to free elections
Protocol 6: Abolition of the death penalty

Key rights listed in the Human Rights Act relevant to health and social care

The human rights articles which are most often engaged in health and social care are discussed below.