The deprivation of liberty safeguards

1. The deprivation of liberty safeguards Lynne Holtom Group Manager, Older Peoples Mental Health Services Kirklees

2. POLICY AND PRINCIPLES CONTEXT Our Health, Our Care, Our Say 5 principles of the Mental Capacity Act 2005 Dignity and Care Agenda

3. LEGAL CONTEXT The safeguards set out the processes that providers of care must follow, if they believe that it would be in the person’s best interests to provide care in a way that amounts to a deprivation of that persons liberty

4. A DOL should be seen as a last option therefore care providers and commissioners should commission care in a way that complies with the Mental Capacity Act principles, and avoids detaining a person unless it is necessary in the person’s own best interests

5. WHERE THE SAFEGUARDS APPLY • Residential care and ward based care situations • Private and Public placements • Admissions to hospital for physical treatment where the person • Lacks capacity • No minimum period stated, but the longer the ‘deprivation’ is needed the more likely the protections should apply

6. WHAT IS DEPRIVATION OF LIBERTY? No simple definition, and is ultimately a legal question Distinction is made between deprivation and restriction and is merely one of degree or intensity and not of nature and substance. Dependent on the particular circumstances of the case

7. Previous Determinations by Courts Restraint including sedation to admit a person to an institution where that person is resisting 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 Not allowing access to others or to maintain social contacts i.e: family, friends Carers request for discharge into their care refused Loss of autonomy due to continuous supervision and control

8. Issues to consider Structured decision making and reviewing Safeguards against arbitrary deprivation of Liberty Effective, documented care planning that includes family, friends and Carers Support for people to make decisions where ever they are able, and clarity about capacity assessment where necessary Ensure that less restrictive options are chosen wherever possible

9. Keeping People Informed Working to keep people in contact with friends and family Working to promote independence and choice proportionate to risk Review of care plans at regular intervals Deprivation of liberty only when authorised except in an emergency

10. Key Roles: Supervisory Bodies • PCT’S – Where the person is cared for in Hospital • LA’S – Where the person is cared for in a registered care • Home (under part ii of the Care Standards Act) ‘Responsible’ authorising body Either the PCT who has commissioned the care or treatment Or in any other case, the PCT for the area in which the hospital is situated The LA in whose area the person is classed as ‘ordinarily resident’ (consult rules) In other cases, the LA in which the care home Is situated This includes private placement arrangements

11. However, the presumption is that the assessment should be carried out ‘where the body is’, and if there is any dispute about the supervisory body, the assessment must be carried out by the local supervisory body The safeguards don’t apply to care arrangements outside of residential or nursing care (i.e. day care) therefore deprivations in these circumstances are illegal unless authorised by an order from the court of protection, or by another legal framework and would need to be addressed under the Safeguarding Adults Procedure.

12. Key Roles: Managing Authorities Managing Authorities are those who are providing care to the individual. ie: Care Home or Hospital Responsibility to care for people in the least restrictive way and to allow them autonomy, choice, dignity and respect. To request authorisation for any Deprivation of Liberty that is occurring or is likely to occur.

13. Key Roles; Assessors • professionals undertaking assessments are personally accountable for their decisions • Supervisory and other bodies should not seek to influence their decisions • Supervisory bodies have a duty to ensure there are sufficient numbers of assessors, and that they are suitably skilled and able to maintain their skills and knowledge • All professionals should be indemnified

14. Assessments Age - The person must be over 18 No refusals - are there any valid advance decisions orLPA/Deputies that oppose any or part of the plan Eligibility Assessment - Regulations state MUST be carried out either by a S12 doctor or AMHP Purpose of assessment is to determine whether the use of the Mental Health Act would be more appropriate that the Mental Capacity Act/DOLS

15. Key Roles: Mental Health Assessment Must be carried out by a registered doctor who is either:- • Approved under Section 12 of the MHA 1983 • 2. A ‘registered’ medical practitioner who has special experience in the • Diagnosis and treatment of mental disorders • And have completed training in DOLS as prescribed by the DOH Supervisory bodies must consider the ‘suitability of the assessor for the particular case The possible advantage of the doctor knowing the patient

16. Mental Capacity Assessment • Can be the Doctor or the Best Interest Assessor • Must have relevant skills and knowledge – considered advantageous if they have previous or ongoing knowledge of the relevant person

17. Key Role: Best Interest Assessment Must be undertaken by an AMHP, Social Worker, Nurse, Chartered psychologist, Occupational Therapist with at least 2 years post qualification experience. Must have successfully completed training approved by the secretary of state to be a best interests assessor. Must have the skills necessary to obtain, evaluate and analyse complex evidence, differing views and to weigh them appropriately in decision-making. The Best Interest Assessor should have the skills and experience for working with the relevant care group

18. Conflicts of Interest • There must be a minimum of two assessors in the process • No assessors may have a financial interest in the care of the person • they are assessing • Assessors may carry out more than one role, but Doctors cannot • also be Best Interest Assessor • Can be an employee of the supervisory or managing authority but • MUST NOT be involved in the persons care, or decisions about their • care Where the Managing Authority and Supervisory Body are the same i.e.: LA Care Home the Best Interests Assessor may not be employed by that LA.

19. OVERVIEW OF THE PROCESS • Managing Authority becomes aware that the care someone needs urgently amounts to a deprivation of their liberty • Can serve themselves an urgent authorisation – 7 days • Managing Authority becomes aware that the care someone needs will amount to a deprivation of their liberty • Need to request a standard authorisation from the supervisory body (21 days) • Supervisory body appoints assessors to complete relevant assessments Best interests Assessors recommend authorisation or not (12 months max) • Authorisation Approved or not by supervisory body. consider any conditions and appoint a relevant persons representative • The Authorisation will be subject to review (Max 12 months)

20. Thank You for listening