Issue details

Proposed decision: Approve the recommissioning of a new Mental Health Assessment Service and confirm the current contractual arrangements, including the approved contract modification which will enable procurement and mobilisation of the replacement service.

Reason for the decision 

The current Mental Health Assessment Service Contract commenced on 1 August 2023 and is expired on 31 July 2026. A contract modification of up to nine months (1 August 2026 to 30 April 2027) has been agreed by Commercial and Procurement under the Provider Selection Regime to allow for the recommissioning of the new service. The current contract expires 30 April 2027.

The proposal is to undertake a competitive procurement exercise to recommission a new Mental Health Assessment Service. This approach will ensure best value for money and gives a balance of resilience, flexibility and quality of service and supports the Council’s statutory Deprivation of Liberty Safeguards (DoLS) function.

Background

Kent County Council is undertaking the recommissioning of its Mental Health Assessment Service to ensure the continued delivery of statutory responsibilities under the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards (DoLS). The service provides timely, independent mental health and mental capacity assessments to support lawful authorisation processes for individuals who may be deprived of their liberty, many of whom are among the most vulnerable in the community. Demand for these assessments is increasing in Kent, reflecting wider system pressures, complexity of need, and the requirement to maintain robust, high-quality and legally compliant assessment processes.

The current commissioning approach has been shaped by a period of legislative uncertainty. Liberty Protection Safeguards (LPS) had been expected to replace DoLS, and this informed the decision to let the existing contract on a shorter-term basis, with flexibility to respond to anticipated reform. However, following the recent Supreme Court judgment, which has removed the previous legal framework (including reliance on the Cheshire West “acid test”), the national position has shifted and the introduction of LPS is no longer expected in its current form. In this context, the recommissioning focuses on ensuring a resilient and adaptable service model that can respond to the evolving legal landscape, maintain compliance with statutory duties, and provide stability and assurance while further national direction and guidance are clarified.

Following the procurement exercise, under the Provider Selection Regime (PSR), a new contract will be in place from 1 May 2027.

Options (other options considered but discarded)

Option 1 ‘Do nothing’ is unviable.

The council has a statutory duty to provide mental health assessments under the Mental Capacity Act 2005. Without a new contract in place to mental health assessments it will put the council at risk on both a financial basis and with regard to meeting statutory duties.

Option 2 - Spot purchase mental health assessments without a contract.

This would result in reduced control of quality, cost and supply meaning there might be occasions where there is insufficient capacity for a service to be provided.

How the proposed decision supports the Council’s Strategic Statement

The recommissioning of the Mental Health Assessment Service supports the Council’s Strategic Statement Reforming Kent 2025–2028 by strengthening the quality, responsiveness and sustainability of a core statutory Adult Social Care function, aligning with the aims of putting residents first, supporting residents who need help, reforming the Council, and building better communities.

The new service approach will improve timely access to assessments, increase capacity to meet rising demand, and ensure continued compliance with statutory duties, thereby improving outcomes and safeguarding for vulnerable adults. It also contributes to the Council’s transformation agenda by modernising delivery and improving efficiency and value for money.

Overall, the recommissioning is fully aligned to the Council’s strategic direction and supports improved outcomes for residents alongside financial sustainability.

Legal Implications

Deprivation of Liberty Safeguard (DoLS) assessments were introduced in 2009 to prevent breaches of article 5 human rights (“Right to liberty and security of person”)^[1], provide a procedure in law for those deprived in accommodation to access care and treatment, and to provide legal protection to determine the lawfulness of the deprivation. This service is a statutory responsibility for the Local authority.

Under the current arrangements a DoLS requires a mental health assessment, carried out by a mental health assessor. The Mental Capacity Act DoLS Regulations 2008^[2] stipulate this must be a medical doctor experienced in mental health and are section 12 approved, therefore approved clinicians under the Mental Health Act 1983. Furthermore, the local authority is responsible for ensuring that sufficient mental health assessors are available.

The Mental Health Assessment Service ensures that the Council can meet its requirement to ensure that a person subject to DoLS has received statutory Mental Health and eligibility assessments in a timely manner so as not to delay any outcome issued by the Supervisory Body.

The procurement will be undertaken in accordance with The Health Care Services (Provider Selection Regime) Regulations 2023^[3], which came into force on 1 January 2024. The regulations primarily apply to NHS England and Integrated Care Boards, and also to local authorities when arranging healthcare services. Kent County Council will use a Competitive Process to test the market and identify a suitable provider, in line with the methodology set out in Regulation 11.