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Deprivation of Liberty Safeguards Project

Background. Introduced into Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007Will 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

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Deprivation of Liberty Safeguards Project

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    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

    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)) “The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance” Therefore no definition Subsequent case law e.g. DE and JE v Surrey County Council Cases to date have arisen from refusals of requests for “discharge” A serious matter to be used sparingly and avoided wherever possible

    4. When should it be used and what does it look like?

    6. 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

    7. 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.

    8. Responsibilities in Deprivation of Liberty

    10. Initial Questions for the Managing Authority

    11. Urgent Authorisation 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 Any decision to issue an urgent authorisation and take action that deprives a person of liberty must be in the person’s best interests. Should restraint be required it must comply independently of DoL safeguards with the conditions set out in section 5,6 MCA Must not exceed 7 days

    12. Assessments Assessments have to ensure that all the requirements are met in relation to deprivation of liberty. They must ensure that the relevant person Is old enough Lacks capacity to make a decision at that time Has not previously refused treatment That their attorney / deputy is not refusing / objecting That they are not currently subject to or should be subject to the Mental Health Act That deprivation of liberty is in their best interests

    13. Age Assessment To establish if the relevant person is 18 or over

    14. Mental Capacity Assessment Purpose – To establish whether the relevant person lacks capacity to consent to the arrangements proposed for their care or treatment

    15. No Refusals Assessment Purpose – To establish whether an authorisation for DoL would conflict with other existing authority for decision making for that person

    16. Eligibility Assessment Purpose – to establish whether the relevant person should be covered by the MHA 1983 of DoL under MCA 2005

    17. Mental Health Assessment Purpose – Is the relevant person suffering from a mental disorder within the meaning of the MHA 1983

    18. Best Interests Assessment Purpose – to establish firstly whether DoL is occurring or is going to occur and if so whether it is in their best interests, it necessary to prevent harm to themselves and the DoL is proportionate to the likelihood and seriousness of the harm

    19. Best Interests Assessment

    20. Assessors Individual professionals personally accountable for their decisions Nobody can or should carry out an assessment, other than age, unless covered by indemnity in respect of any liabilities that might arise in connection with carrying out the assessment

    21. IMCAs Instructed as with MCA when no family / friends appropriate to represent during the application / assessment stage Once deprived of liberty the person or their representative has right to an IMCA A paid / professional representative or the person that has one has no right to an IMCA See text on earlier slide re representativesSee text on earlier slide re representatives

    22. Representatives Once anybody is deprived of liberty the SB has to appoint a representative from amongst those recommended by the BI assessor A paid / professional representative has to be appointed where no family or friends – that person can not be an employee of the SB See text on earlier slide re representativesSee text on earlier slide re representatives

    23. Code of Practice Addendum Formal consultation commenced W/C 10.9.07 Extracts from Code available today Flowchart of process Flowchart of questions for managing authority to consider prior to requesting an authorisation as per earlier slide (10) Key issues for supervisory bodies and managing authorities Please respond

    24. Regulations – consultation I Formal consultation commenced W/C 10.9.07 Affirmative regulations – 2 x debates required Who is eligible to carry out assessments? E.g. a doctor How are assessors selected? By supervisory body Time frames for carrying out assessments How a request is triggered Issues of ordinary residence Please respond

    25. Regulations – consultation II Formal consultation commenced W/C 10.9.07 Negative regulations – no debate required Appointment and selection of representatives Does the person have capacity to choose their representative? Selection by best interests assessor Selection / appointment by supervisory body Termination of role Please respond

    26. Consultation Closes 2.12.07 www.dh.gov.uk/en/Consultations/LiveConsultations/DH_078052 www.justice.gov.uk/publications/cp2307.htm Self explanatorySelf explanatory

    27. 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 - OFCARE Will be established during 2008 Will be part of “routine” inspection / monitoring – not unduly burdensome Expected to be fully operational by 2009/10

    28. Implementation Published regulatory impact assessment (RIA) assumes 21,000 people in England and Wales will need an assessment in first year 2008 / 09. 17,000 in care homes / 4,000 in hospital at an average cost of Ł500 per assessment. 20,000 in England in year 1: 20,000 / 150 / 52 = 2.56 assessments per area of a council with social services responsibilities per week – but flows, peaks and troughs, assume initial larger numbers before “steady state” Burden – 80% on LA and 20% on NHS

    29. WTE net additional staff – Year 1 vs Steady State 2008/09 Psychiatrists 26 Social Workers 102 Nurses 0 Advocates 50 Other staff 51 Total 229 2014/15 Psychiatrists 7 Social Workers 27 Nurses 0 Advocates 13 Other staff 13 Total 60

    30. Training requirements 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

    31. Training requirements Need to maximise use of current S12 and ASW / AMHP courses 4,000 MH consultants and 4,000 ASWs in England? How much could be done by e-learning? IMCAs will need to be trained – model of 2007 national delivery of 400+ IMCAs trained in 20+ courses (5 days each) over three months What national / local arrangements will we need for DoL? DH has standard training materials for MCA at www.dh.gov.uk/mentalcapacityact

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