Deprivation of Liberty Safeguards Project

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Deprivation of Liberty Safeguards Project

• Paul Gantley
• National Programme Implementation Manager
• Mental Capacity Act 2005
• Paul.Gantley_at_dh.gsi.gov.uk
• 020 7972 4431

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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

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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 wasnt judged to
  have occurred in similar circumstances
• A serious matter to be used sparingly and avoided
  wherever possible

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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.

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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.

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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?

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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 individuals
  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?

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Responsibilities in Deprivation of Liberty
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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
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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
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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

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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 persons
  rights and freedom of action.

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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

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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

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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

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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

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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

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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 everybodys
  benefit
• Sharing the risk help lines?