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 • Will become statutory obligation in 2008

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? 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

5. 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

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. Responsibilitiesin 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. Person in need of care to prevent harm to themselves Is it necessary to deprive them of their liberty? Now? Grant urgent authorisation Yes Apply to SB for standard authorisation DoL Process Purpose: To prevent unlawful deprivation of liberty Is application appropriate? No Reject application Yes Conduct assessments Do all assessments support DoL? No Reject application Yes Grant authorisation Appoint a representative Monitor and Review DoL

10. Yes No Do they lack capacity to consent? Initial Questions for the Managing Authority No application can be made Application may be required Are they at risk of DoL within 28 days Reconsider when reviewing care Application may be required Can they receive care through less restrictive but still effective alternative? Application cannot be made Application may be required Is the person 18 years of age or older (or going to turn 18 within 28 days)? Application may be required No application can be made – Consider Children Act/MHA Is the person subject to powers of the MHA which would mean they are ineligible for DoL? Application may be required Application cannot be made Has the person made an advance decision to refuse the treatment? Application cannot be made Application may be required Is proposed DoL for mental health treatment in hospital and does the person object? Application may be required Application cannot be made Has the person’s attorney/deputy indicated they will refuse on their behalf? Application is required Application cannot be made Should DoL begin immediately? Grant urgent authorisation Apply for standard authorisation

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 Anyone deemed to be appropriate

14. Mental Capacity Assessment • Purpose – To establish whether the relevant person lacks capacity to consent to the arrangements proposed for their care or treatment Anyone eligible to act as a Mental Health Assessor or Best Interests Assessor

15. No Refusals Assessment • Purpose – To establish whether an authorisation for DoL would conflict with other existing authority for decision making for that person Anybody that the Supervisory Body considers has the skills and experience to perform the role

16. Eligibility Assessment • Purpose – to establish whether the relevant person should be covered by the MHA 1983 of DoL under MCA 2005 Best Interests Assessor Someone familiar with the Mental Health Act 1983

17. Mental Health Assessment • Purpose – Is the relevant person suffering from a mental disorder within the meaning of the MHA 1983 Doctor Approved under Section 12 of MHA 1983 or Registered medical practitioner who has special experience in diagnosis and treatment of mental disorder Completed appropriate MCA 2005 mental health assessor training Doctors cannot be Best Interests Assessors

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 AMHP; Social Worker, Nurse, Occupational Therapist, Psychologist: With skills and experience required by the regulations Has the required skills for the role Has completed specific DoL Best Interests Assessor training Suitability considering the circumstances of the case

19. Best Interests Assessment Evaluate the care plan Determine if DoL is occurring / going to occur Seek the views of anyone involved in caring for the person or interested in their welfare Involve the relevant person and support them to participate in decision making Consider views of mental health assessor Decide whether it is in person’s best interests to deprive them of their liberty State how long the authorisation should last State any necessary conditions associated with DoL Recommend someone to be appointed as relevant person’s representative Produce report, stating reasons for conclusions submit to supervisory body

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

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

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

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 £500 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. 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 WTE net additional staff – Year 1 vs Steady State

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