Deprivation of Liberty Safeguards Project

1. Deprivation of Liberty Safeguards Project Paul Gantley National Programme Implementation Manager Mental Capacity Act 2005 Paul.Gantley@dh.gsi.gov.uk 020 7972 4431

2. Background • Introduced into Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007 • Will prevent arbitrary decisions that deprive vulnerable people of their liberty • Safeguards are to protect service users and if they do need to be deprived of their liberty give them representatives, rights of appeal and for the “deprivation” to be reviewed and monitored. • Safeguards cover people in hospital and care homes registered under the Care Standards Act 2000 – whether placed publicly or privately • Planned to become statutory obligation in April 2009 – so need to go to Court of Protection in the interim

3. What is deprivation of liberty? • Arises from the “Bournewood” case – a ECtHR case – Article 5. • HL had been deprived of his liberty unlawfully, because of a lack of a legal procedure which offered sufficient safeguards against arbitrary detention (5(1)) and speedy access to court (5 (4)) • Therefore no definition • Subsequent cases have found examples where deprivation of liberty was and wasn’t judged to have occurred in similar circumstances • A serious matter to be used sparingly and avoided wherever possible

4. What is deprivation of liberty? Supplement to the MCA Code of Practice 2.5 The ECtHR and UK courts have determined a number of cases about deprivation of liberty. Their judgments indicate that the following factors can be relevant to identifying whether steps taken involve more than restraint and amount to a deprivation of liberty. It is important to remember that this list is not exclusive; other factors may arise in future in particular cases. • Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission. • Staff exercise complete and effective control over the care and movement of a person for a significant period. • Staff exercise control over assessments, treatment, contacts and residence.

5. What is deprivation of liberty? Supplement to the MCA Code of Practice 2.5 (contd.) • A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate. • A request by carers for a person to be discharged to their care is refused. • The person is unable to maintain social contacts because of restrictions placed on their access to other people. • The person loses autonomy because they are under continuous supervision and control.

6. How can deprivation of liberty be identified? Supplement to the MCA Code of Practice 2.5 • All the circumstances of each and every case • What measures are being taken in relation to the individual? When are they required? For what period do they endure? What are the effects of the restrictions on the individual? Why are they necessary? What aim do they seek to meet? • What are the views of the relevant person, their family or carers? Do any of them object to the measures?

7. How can deprivation of liberty be identified? Supplement to the MCA Code of Practice 2.5 (contd.) • How are the restraints or restrictions implemented? • Do any of the constraints on the individual’s personal freedom go beyond “restriction” or “restraint” to the extent that they constitute a deprivation of liberty? • Are there any less restrictive options for delivering care or treatment that avoid deprivation of liberty altogether? • Does the cumulative effect of all the restrictions imposed on the person amount to a deprivation of liberty, even if individually they would not?

8. Responsibilities in Deprivation of Liberty Managing Authority Hospital or Care Home Responsible for care and requesting an assessment of deprivation of liberty Supervisory Body PCT or LA Responsible for assessing the need for and authorising deprivation of liberty Relevant Person Person being deprived of liberty Assessors Carry out assessments Family/Friends/Carers Consulted, involved and provided with all information Representative Providing independent support IMCA Court of Protection

9. When should it be used and what does it look like? Used when a resident or patient needs to go in to or remain in the registered care home or hospital in order to receive the care or treatment that is necessary to prevent harm to themselves. Managing Authority Hospital/Care Home Decide if it is necessary to apply for authorisation from Supervisory Body to deprive someone of their liberty in their best interests Supervisory Body PCT/LA Assess each individual case and provide or refuse authorisation for DOL as appropriate Managing Authority Supervisory Body Review cases to determine if DOL is still necessary and remove where no longer appropriate

10. Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from supervisory body In an emergency hospital or care home can issue an urgent authorisation for seven days while obtaining authorisation Assessment commissioned by supervisory body. IMCA instructed for anyone without representation Age assessment No Refusals assessment Mental health assessment Eligibility assessment Mental capacity assessment Best interests assessment Authorisation expires and Managing authority requests further authorisation All assessments support authorisation Any assessment says no Best interests assessor recommends person to be appointed as representative Best interests assessor recommends period for which deprivation of liberty should be authorised Request for authorisation declined Person or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditions Authorisation is granted and persons representative appointed Authorisation implemented by managing authority Managing authority requests review because circumstances change Person or their representative requests review Review

11. Some key points • The deprivation of liberty safeguards are in addition to and do not replace other safeguards in the MCA • Deprivation of liberty is for the purpose of providing treatment or care under MCA it does not authorise it • Essential that hospital and care home managers and assessors understand the distinction between deprivation and restriction of liberty • Every effort should be made to avoid instituting deprivation of liberty care regimes wherever possible • Local authorities, PCTs, Hospitals, Care Homes and other key stakeholder organisations need to work in partnership to deliver DoL safeguards and reduce the numbers referred unnecessarily for assessment

12. How do DOLS relate to the rest of the MCA? • Any action taken under the deprivation of liberty safeguards must be in line with the principles of the Act: • A person must be assumed to have capacity unless it is established that he lacks capacity • A person is not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success • A person is not to be treated as unable to make a decision merely because he makes an unwise decision • An act done, or decision made, under this Act or on behalf of a person who lacks capacity must be done, or made, in his best interests • Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

13. Authorisations • The MA can give an urgent authorisation for DoL where it believes the need is immediate • Should normally only be used in response to sudden unforeseen needs but also may be used in care planning e.g. to avoid delays in transfer for rehabilitation where delay would reduce the likely benefit of rehab • Must not exceed 7 days (or 14 in exceptional circumstances) • Standard authorisations need to be assessed within 21 days • Cannot be applied for more than 28 days in advance

14. Assessments • Assessments have to ensure that all the requirements are met in relation to deprivation of liberty. • Regulations will determine who does assessments • Doctors have to do MH assessments • AMHPs, SWs, OTs, Nurses and psychologists proposed best interests assessors

15. Monitoring the safeguards • Will be inspected by the new health and adult social care regulator; • Commission for Social Care Inspection + Healthcare Commission + Mental Health Act Commission – Care Quality Commission • Will be established during 2008 • Will be part of “routine” inspection / monitoring – not unduly burdensome • Expected to be fully operational by 2009/10

16. Implementation • Published regulatory impact assessment (RIA) assumes 21,000 people in England and Wales will need an assessment in first year 2009/10 • 17,000 in care homes / 4,000 in hospital at an average cost of £500 per assessment. • Training courses need to be approved by Secretary of State • Need to train all those with a formal role • Best interests and mental health assessors (who will also assess mental capacity); IMCAs • Need to “brief” those with an admin / managerial role in care homes, hospitals, PCTs and LAs • Need to raise awareness of all others affected more indirectly i.e. staff who provide day to day care and treatment but who are not involved in the statutory DOLS process

17. Implementation issues and structures • Timescale • Availability of workforce for a possible early peak • Level of familiarity with MCA prior to DOLs • Need for local health and social care communities to work together to prepare and run the system – need for local impact assessments • Continuation of MCA Local Implementation Networks (LINs) x 150 for DoLS – regional CSIP leads • Availability of standard forms • Transitional arrangements

18. Issues for care homes? • Definition of deprivation of liberty • Availability of standard forms • Thinking about it now • Working with local authorities and local implementation networks now • Not reducing the numbers BUT removing the need for unnecessary assessments to everybody’s benefit • Sharing the risk – help lines?