Mental Capacity Act and Deprivation of Liberty Safeguards

1. Mental Capacity Act and Deprivation of Liberty Safeguards February 2015.

2. Deprivation of Liberty Safeguards • The Safeguards were developed after a gap in the law was identified through the HL case at Bournewood Hospital (hence the ‘Bournewood Gap’). After a long legal battle that lasted seven years, the European Court of Human Rights ruled that HL had been unlawfully deprived of his liberty. • At that time, the Mental Health Act Commission suggested they could be 22 000 people in similar situations (eg ‘informal’ patients who could not consent to admission). • The Deprivation of Liberty Safeguards were the Government response, and came into force in April 2009, under amendments to the Mental Capacity Act 2005.

3. Deprivation of liberty • Article 5, ECHR: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: • Criminal justice system such as prisons. • Immigration detention centres. • Health Protection Regulations (infection diseases). • Mental Health Act. • Deprivation of Liberty Safeguards.

4. What is deprivation of liberty? • No definition in the European Convention on Human Rights. • No definition in the Mental Capacity Act. • The definition is continuously changing through case law. The latest definition comes from the Cheshire West supreme court hearing in 2014.

5. What is deprivation of liberty? 2 Supreme Court ruling March 2014 (‘Cheshire West’) produced an ‘acid test’ (if the person lacks capacity to decide whether to stay in their accommodation in order to receive the care or treatment they need). A person is deprived of their liberty if: 1) They are not free to leave (as in move elsewhere) AND 2) They are under continuous supervision and control Cheshire West and Chester Council v P (2014)

6. New definition – effect on numbers • In the year ending March 2014, there were 13 000 applications for DoLS in England. • In the first quarter of 2014 (April, May, June 2014), there were 21 563 applications for DoLS. • In the second quarter (July, August, September), there were 31 300 applications for DoLS. • Projected figures for the full year 2014/2015 are around 115 000, but may well be significantly higher. • In comparison, there were only 18 166 people detained under the MHA in 2013/14 (excluding CTO, and s136). • Legal challenges are rising – including where DoLS should have been used but was not.

7. Deprivation of Liberty Safeguards • Apply in registered care homes and hospitals • Authorises detention in that institution • Any decision about particular care or treatment follows the normal process of assessing capacity, and making best interests decisions as required. The DoLS authorisation allows the person to be accommodated in a care home or hospital, but acts done while there (such as personal care) need to be assessed separately, and best interests decisions made.

8. Deprivations not in hospitals/care homes • The Safeguards do not apply in supported living or private homes, although deprivations of liberty may well be occuring. • The Law Commission is reviewing DoLS, and deprivation of liberty in settings where DoLS does not apply. They are not expected to report until 2017, with no changes to the law likely until one or two years after that. • If you believe someone to be deprived of their liberty in a setting where DoLS does not apply, you should be raise this immediately with the care manager responsible for the placement, who should discuss it with their manager to raise it with the legal department. Independent assessments may need to be carried out, and an application to the Court of Protection made. • The Local Authority is currently looking at how best to manage such situations, and should be developing a policy.

9. Dispute with family members • A DoLS authorisation does not authorise restricting contact with family members (which could be a breach of Article 8 of the ECHR - right to respect of private and family life), or manage disputes between care teams and families. • For such issues, you would need to make a Court of Protection application to have the court make a decision.

10. DoLS request needed? • Is it a possibility the person is being detained? • Where is the person ordinarily resident? Referral needs to go to the borough where they usually live (usually the funding/reviewing authority). Ring the tri-borough DoLS office to discuss (H&F, K&C, & Westminster service users only): • Andy Seymour, DoLS Manager – 020 7641 5200 • Gita Devi, DoLS Co-ordinator – 020 7641 5222 • Download the necessary forms (form 1 and form 4) from https://www.gov.uk/government/publications/mental-capacity-act-2005-deprivation-of-liberty-safeguards-forms-for-managing-authorities • Fax the forms immediately on 020 7368 0264.

11. DoLS process • Registered manager or representative of care home (managing authority) completes the request for standard authorisation (Form 4) and faxes it to the DoLS office for the area where the person is ordinarily resident (supervisory body). You must first discuss this with the person, and with involved family or friends to advise a BIA will be making contact. • You must ensure you provide full and accurate details of family/friends to enable the BIA to contact them. • Managing Authority judges whether an IMCA is needed (if there are no family or friends who are appropriate to consult), and advises the Supervisory Body if so.

12. DoLS process 2 • If the person is already there and needs to be detained immediately, managing authority completes urgent authorisation (Form 1). • Urgent Authorisation gives the managing authority the legal authority to deprive person of their liberty for 7 days. • Copy needs to be given to person and support provided to help them to understand as much as they can.

13. DoLS best interests assessment • Is the person deprived of the liberty (or will they be)? • If so, is that in their best interests? • If so, is it necessary to prevent harm to them? (NB you cannot use DoLS for the protection of others, unlike the MHA) • If so, is it proportionate to the likelihood and seriousness of that harm?

14. DoLS assessors • DoLS assessments are carried out by independent assessors, and have legal standing. • Six assessments are carried out in total (Mental Health, Mental Capacity, Eligibility, Age, No refusals, and Best Interests). • Mental Health Assessor (Doctor, normally section 12-approved; they can be involved in person’s care) • Best Interests Assessor (SW, nurse, OT or psychologist; they must not be involved in person’s care) • Supervisory body must give authorisation if all assessments are positive; cannot if one is negative (eg criteria not met).

15. Standard authorisation in place • Length of authorisation set by BIA for up to one year. • Not valid if conditions set by BIA are not met. • Does not give authorisation for actions carried out while person in hospital/care home, which must be separately assessed and best interests decisions made. • Review must be requested if anything changes, such as if the care plan becomes more restrictive. • Person will have a Representative (family/friend or paid rep identified by BIA), who can request reviews on the person’s behalf. • Appeals are made to the Court of Protection.

16. Compliance with the MCA In January 2014, the CQC published their fourth annual report into the use of the MCA. They found: • People were continuing to be restrained and possibly deprived of their liberty in hospitals and care homes without legal protection. • Two-thirds of hospitals and care homes were failing in their legal duty to notify the CQC of DoLS applications. • They have now made the MCA and deprivations of liberty one of their Key Lines of Enquiry, and all inspections will check MCA assessments are sufficient, best interests decisions follow section 4 of the MCA, restrictions have been minimised where possible, AND where a deprivation of liberty exists, that this has been properly authorised.

17. Compliance with the MCA/DoLS 2 Possible outcomes of non-compliance: • CQC enforcement through civil and criminal law (fines, changes to registration, prosecution). • Safeguarding alerts against the organisation. • Neglect findings before the coroner. • Professional disciplinary issues. • Perfomance management issues. • Claims for damages (negligence, Human Rights Act violations). • Criminal liability for trespass and assault. • Criminal liability for neglect or ill-treatment.