Deprivation of Liberty Safeguards

Susan Inker

Care and Health Law

What is the purpose of the deprivation of liberty safeguards?

The deprivation of liberty safeguards address the October 2004

ECHR judgment in HL –v- UK (the Bournewood judgment)which

Requires that people may only be deprived of their liberty through a process set out in law

With safeguards to prevent arbitrary detention and speedy access to a Court to review the detention

The Safeguards cover England and Wales (separate Regulations for Wales)

What is the legislative framework for the safeguards?

The legislative provisions can be found in the Mental Capacity Act 2005

They were introduced into that act by the Mental Health Act 2007

Supported by Deprivation of Liberty safeguards – Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice

Consultation by Ministry of Justice and Department of Health on the draft code took place between September 07 and December 07 – report available

Laid before parliament in June 08 in draft and ended laying period on 22nd July 2008

Final version of Code of Practice published 26th August 08

What is the legal status of the supplemental Code

As with the main Code, the supplemental Code is published under Sections 42 and 43 of the MCA 2005. It covers both England and Wales

It is intended as guidance rather than instruction ie “comply…” for persons exercising functions in relation to deprivation of liberty safeguards contained in Schedule A1 of that Act

People coming within the scope of the Bournewood provisions

Provisions relate to people 18 or over in England and Wales who meet the relevant criteria

Have a mental disorder (as defined by Sec 1 of the MHA 1983 ie a disorder or disability of the mind

Lack the capacity to give their consent to plans made for their care; and

Are deprived of their liberty within the meaning of Article 5 of the convention despite not being subject to formal detention under the MHA 1983

Will cover patients in hospitals and people in care homes registered under the Care Standards Act 2000 whether placed under public or private arrangements

Such people are largely those with significant learning disabilities, elderly people suffering from dementia and some others, eg someone suffering from a physical injury such as a brain injury

What are the benefits and risks ?

There had to be a legislative solution to respond to the Bournewood judgment

The safeguards are most appropriately set in the Mental Capacity Act as the issues raised in Bournewood were primarily mental capacity issues rather than mental health issues

Core principles of Mental Capacity Act which include supporting a person to make their own decisions whenever possible, acting in their best interests and in the least restrictive manner will apply in the context of deprivation of liberty safeguards

Avoids the need to extend sectioning under the Mental Health Act which was heavily opposed during the consultation

What are the benefits and risks?

It is difficult to estimate the numbers of people who might need to be covered by the safeguards and therefore difficult to assess the impact of additional work in the field and for the Court of Protection

Estimated - approximately 500,000 people in E & W who have a mental disorder and who lack capacity

Includes people with severe learning disabilities and older people with dementia living in institutions.

1 in 10 of that number ie 50,000 would require additional restrictions for their protection which might amount to deprivation of liberty

10% of relevant population ie 5,000 subject to assessment for authority to deprive of whom no more than 25% (1250) at any time likely to be deprived of their liberty

On the basis of Ministry of Justice forecasts of the use of the Court of Protection 2.5% of the 1250 people ie 1 in 40 might end up in a Court of Protection hearing

Views on consultation

Estimated figures were challenged by many people during the consultation on the Code

Felt Impact Assessment did not fully reflect the probable situation

Government has reviewed the estimates and remains of the view that the numbers of people these safeguards will affect should be relatively small

It will keep the matter under ongoing review! There is a revised Impact Assessment

www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_084982

What happens in the meantime ?

Interim guidance issued by the Department of Health in 2004 in England and 2005 Wales following the Bournewood judgment drew the attention of hospital and care home managers to the importance of avoiding the deprivation of an individuals liberty

Government figures suggest that because of compliance by hospital and care home managers to remaining lawful under the interim guidance, and when the Deprivation of Liberty Safeguards come into force, the hospitals and care homes having an understanding of what amounts to deprivation of liberty, and how to avoid it, there will be less people who will need authorisation….have they got it right ?

Views on consultation

Estimated figures were challenged by many people during the consultation on the Code

Impact Assessment did not fully reflect the probable situation. Underestimated the number of people affected, the amount of time to implement the safeguards and the associated costs

Comments include Uncertainty of managing authorities as they are unclear whether they

have “detained residents” and they will play safe and refer everyone who might possibly qualify

The Impact Assessment assumes that care homes have already acted upon the earlier interim guidance in order to avoid unlawful deprivation of liberty and anecdotal evidence would suggest this is not the case

Impact Assessment does not refer to later case law eg DE and JE v Surrey CC which potentially hugely widens the scope of what counts as deprivation of liberty

There is reference to 17,000 people in local authority care, but does this figure reflect those who are funding their own care ?

What does the Report say….

Government has reviewed the estimates and remains of the view that the numbers of people these safeguards will affect should be relatively small

It will keep the matter under ongoing review! There is a revised Impact Assessment

www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_084982

What is the likely impact on local authorities with social services responsibilities ?

As a supervisory body they will be required to deliver a system that receives and processes applications from managing authorities - 80% LA 20% NHS

Some authorities may be supervisory bodies and managing authorities Appoint suitably trained staff to undertake best interests and mental

health assessments Establish an authorisation panel which will consider the outcome of

such assessments Comply with statutory requirement to communicate outcome with

defined persons Determine the length of any deprivation of liberty and consider any

relevant conditions that should be attached Liaise closely with NHS to make sure sufficient assessors are

available to meet demand for authorisations Ensure commissioning of existing IMCA service is extended to meet

need

Transitional arrangements

Safeguards will significantly impact on local authorities, PCT’s, care homes and hospitals

Transitional arrangements will be placed before Parliament with a commencement order

To assist and inform local planning the proposed arrangements are being shared in advance

Transitional arrangements

Managing authorities will still be required to apply for deprivation of liberty authorisations from 1 April 2009 but there will be transitional arrangements

It is proposed that urgent authorisations given during April 09 will be effective for 21 days rather than the usual 7 days

For urgent authorisations given from 1 May 09 the usual period will be 7 days

It is proposed that in respect of requests for standard authorisations received by supervisory bodies during April 09 the timeframe for assessment will be 42 days rather than 21 days

For requests for standard authorisations from 1 May 09 the usual period of 21 days for assessments will apply

To allow for supervisory bodies taking longer to process assessments in the first month and alleviate pressures for supervisory bodies and managing authorities in initial stages of the DOL safeguards implementation process

What is deprivation of liberty and what is it not ?

The ECtHR judgement in the HL v United Kingdom case did not define what was meant by “deprivation of liberty” though it confirmed that it was different from mere restriction of liberty

“to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance”

Principles established by Strasbourg

Firstly, a basic distinction should be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former governed by Article 2 of Protocol No 4 and do not amount to a breach of Article 5 (Guzzardi v Italy (1980) 3 EHRR 333, Ashingdane v United Kingdom (1985 7 E.H.R.R 528, H. M. v Switzerland (26 February 2002) Application No 39187/98

Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance

Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question.

Fourthly, account must be taken of the cumulative effect of the various restrictions

Fifthly, the purpose of any measures of restriction is a relevant consideration. Whether in the interests of the individual or public. (Nielsen v Denmark (1988) E.H.R.R 175, H.M v Switzerland

What is deprivation of liberty and what is it not ?

Each case must be considered on its merits and account must be taken of type, duration, effects and manner of implementation of measure in question

There is unlikely to be any simple definition that can be applied in every case

It is not possible to say that any single factor alone would always or could never amount to a deprivation of liberty

The new provisions exist only to provide a proper legal process and suitable safeguards in circumstances where deprivation of liberty is an unavoidable necessity in a person’s own best interests

Every effort should be made to prevent deprivation of liberty becoming unavoidable

What should decision-makers consider when deciding…..

All the circumstances of the case What measures are being taken in relation to the

individual? For what period do they endure? What are the effects of any restraints or restrictions? Why are they necessary?

What are the views of the relevant person or their family? Do they object?

How are restrictions or restraints implemented ? Do they go beyond restraint or restriction to deprivation of liberty?

Are there any less restrictive options for delivering the care ?

Does the cumulative effect of all the restrictions imposed amount to deprivation of liberty, even if individually they would not?

Factors which amounted to deprivation of liberty in previous cases

Restraint was used, including sedation to admit a person who was resisting

Staff exercised complete and effective control over care and movement for a significant period

Professionals exercised complete control over assessments, treatments, contacts and residence

A person would be prevented from leaving if they made a meaningful attempt to do so

A request by carers for the person to be discharged from their care was refused

A person was unable to maintain social contacts because of restrictions placed on access to other people

A person lost autonomy because they were under continuous supervision and control

Factors the court may deem relevant when considering whether someone is deprived of their liberty or not…..

The person is not allowed to leave the facility If a person is, or would be prevented from leaving the

facility at all – (DE and JE v Surrey CC) Whether by distraction, locked doors or restraint or they are

led to believe that they would be prevented from leaving if they tried

A person is not deprived of their liberty simply because they lack the physical ability to leave, or the mental capacity to form a genuine intention to leave, but might be if family, friends or carers are prevented from moving them to another care setting or from taking them out at all, or they could go outside, escorted or not and are not given the opportunity to, or a decision has already been made to prevent them leaving

Factors the court may deem relevant….

The person has no or very limited choice about their life within the care home or hospital such as: Where they can be within the care home or

hospital – ie restriction of freedom of movement physically or through regular use of medication or seating

What they can do Who they can associate with, or When and what they can eat

What factors the court may deem relevant…..

The person is unable to maintain contact with the world outside the care home or hospital Who they can contact, who may visit and

when they can use the telephone – does not apply to proportionate restrictions

If the person is cut off from family, say who can only visit in the evenings and visiting hours state no evening visits

What factors the courts may deem relevant…..

Restraint is/was used on admission to hospital or care home and the person is not realistically subsequently able to leave Restraint may lawfully be used on admission or to

administer treatment or care under Section 6 of the MCA 2005.

This is an indicator that the person’s wishes may be being overridden.

Consideration must be given on whether it is reasonable restraint or deprivation of liberty. If the latter then authorisation is necessary

Ashingdane v United Kingdom (1985)

FactsMan placed in Broadmoor following his conviction for a number of offences. He suffered from paranoid schizophrenia which was controlled by medication and supervision but he was unwilling or unable to comply with his treatment voluntarily and so, if released, might be dangerous. His condition improved and the Secretary of State authorised his transfer to Oakwood House, a local psychiatric hospital on a conditional discharge

IssuesWhether the conditions were mere restriction on, or deprivation of liberty

Ashingdane v United Kingdom

Conditions Applicant was placed in a closed ward which was locked, at least at night No special security but a high staff/patient ratio He was allowed freedom, unescorted, in the hospital grounds for two hours

a day In 1981, he was moved to an open ward From 1984, regular, unescorted leave to visit family (every weekend from

Thursday to Sunday) Free to leave hospital Monday to Wednesday, provided only that he

returned to his ward at nightWere the conditions mere restrictions or deprivation of liberty?

Held, the court took the view that he remained detained and deprived of his liberty at Oakwood, in the sense that his liberty, and not just his freedom of movement, has been circumscribed both in fact and law even though he has been permitted to leave the hospital on frequent occasions.

Nielsen v Denmark (1988)

FactsThe mother of a 12 year old boy arranged for his admission to the state hospital’s psychiatric ward. The boy had a nervous disorder and required treatment in the form of regular talks and environmental therapy. The treatment given, and the conditions under which it was administered, was appropriate. The duration of the treatment was five and a half months. The boy, however, applied to the ECtHR, feeling that he had been deprived of his liberty

HeldThe restrictions imposed on the applicant were not of a nature or degree similar to the cases of deprivation of liberty specified in paragraph 1 of Article 5. In particular, he was not detained as a person of unsound mind….indeed, the restrictions to which the applicant was subject were no more than the normal requirements for a care of a child of 12 years of age receiving treatment in hospital. It did not amount to deprivation of liberty, but was a responsible exercise by his mother of her custodial rights in the interests of the child.

R v Mental Health Review Tribunal (2004)

FactsMP is a 69 year old man. In 1976 he was convicted of manslaughter. He had strangled an 11 year old boy he had invited into his house. He had a long history of sadistic paedophilic sexual fantasies and assaults on young boys. He was committed to hospital pursuant to Sections 37 and 41 of the Mental Health Act 1983 subject to a restriction order without limitation of time.

IssuesThe issue was whether it is in fact appropriate to direct MP’s conditional discharge and whether the conditions would amount to a deprivation of liberty and therefore unlawful

Tribunal PowersThe powers of the tribunal dealing with a restricted patient are, if the tribunal are not satisfied that the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment, or for his or anyone else’s health and safety he should receive such treatment, then the tribunal must order discharge. If however the tribunal is satisfied that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment then they must direct a conditional discharge which may be deferred until arrangements have been made and are in place to meet the conditions. A tribunal has no power to impose conditions which would amount to deprivation of liberty. If they were imposed for the benefit of and to assist the patient rather than for the protection of others it will be easier to regard them as restrictions on rather than deprivation of liberty

R v Mental Health Review Tribunal

Conditions The patient shall take medication, in particular anti-libidinal medication as

prescribed and comply with any other treatment as directed by his RMO He shall reside at accommodation with properly qualified round the clock

staff experienced in working with violent sexual offenders. He is unable to leave it without an escort

He shall, when not in the accommodation, at all times be escorted by a member of the accommodation’s permanent staff

He shall accept and comply with regular supervision by a consultant psychiatrist and by a social worker

Were the conditions mere restrictions or deprivation of liberty?

Court held “it is quite impossible to argue that what is proposed could amount to anything less than a deprivation of liberty” “the conditions imposed in this case would inevitably result in a deprivation of liberty”

R (G) v Mental Health Review Tribunal (2004)

FactsG a 67 year old man attempted to strangle his 10 year old niece and raped her mother in 1966. Found unfit to plead and admitted to Broadmoor Hospital and treated as if he were committed to hospital under Sections 37 and 41 of the MHA 1983. He suffered from paranoid schizophrenia. He was treated and in 2003 it was felt by the MHRT that he could be discharged conditionally. Absolute discharge was not considered appropriate. Conditional discharged deferred until conditions could be put in place. One of the conditions (a hostel) could not be found. Case reviewed in 2003/4 and it was felt there should be a revocation of the conditional discharge (as a provisional decision which could be altered on changed circumstances). In 2000 he was transferred to Thornford Park Hospital, a private sector psychiatric hospital. He moved into a rehabilitation flat at Thornford Park in 2003. He was a detained patient in a rehabilitation flat. The proposal was that he remained there but was “conditionally discharged” with the same conditions as he was subject to when detained.

G v Mental Health Review Tribunal

Conditions for Conditional Discharge To reside at a named hostel To accept supervision and treatment as directed by his M

RMO To accept social supervision from the appointed supervisorConditions at Thornford Park Hospital as a detained patient He lived in a rehabilitation flat within the main secure hospital building He has to abide by the “house rules” but has leave granted to him Access to and from the grounds is only by way of secure and substantial security

gates operated by remote control and video When he wishes to go out he is required to agree with staff the times of leaving and

return and where he will be going He can only take leave during daylight hours and at other times staff can refuse to

allow leave He has to surrender his electronic key to his flat when he goes out He can be forcibly returned to hospital if necessaryWere the conditions mere restriction of liberty or deprivation of liberty? The Court held that the lack of any changes to the regime or accommodation leads

inexorably to the conclusion that there will be a deprivation of liberty

HL –v- UK - Bournewood

Tested the boundary between appropriate restraint and the loss of Human Rights under Article 5 – the right to liberty.

Facts: Patient was a 48 year old profoundly autistic man with a learning disability. For over 30

years, he was cared for in hospital. He was then entrusted to his carers and lived with them for 3 years but following an incident of self harm at a day centre in 1997 he was re-admitted informally. His carers wanted him to return to them, the hospital refused. They were unable to visit. He lacked the capacity to say whether he would stay in hospital or accept treatment. He was not detained under the Mental Health Act 1983. Was he deprived of his liberty?

Result: The man was so deprived as he was under the complete and effective control of the health

care professionals. A question of intensity and degree. Also, one of the key considerations in all of the actions taken under the Mental Capacity Act

is that the ‘appropriate and least restrictive act’ must be considered. In the Bournewood case the acts taken were not the ‘most appropriate and least restrictive’.

Illegality in European law terms:The arbitrariness of the detention, and the absence of a clear enough legal framework at the time,

for the protection of incapacitated but compliantly detained persons….

R v Bournewood Mental Health NHS

Outline of restriction/deprivation

He was not placed on a locked ward – he was compliant and showed no desire to leave

He would have been detained compulsorily if he had tried to leave He was controlled by way of supervision and medication

Were the conditions mere restriction or deprivation ofliberty?

High Court – found against – not detained (voluntary patient,compliant) Court of Appeal – found for – detained House of Lords – reversed decision – not detained – not unanimous – but if detained

would be in best interests so lawful ECtHR – found “person of unsound mind” – he was detained – best interests were

unlawful and incompatible under EU law – arbitrary and lack of challenge to lawfulness of detention

These cases show the difficulty of deciding in an individual case on which side of the line it should fall between deprivation of liberty and restrictions on liberty

DE and JE v Surrey County Council (2006)

Facts: DE was a 76 year old man who, following a major stroke, had become blind and

had significant short term memory impairment. He also had dementia and lacked capacity to decide where he should live, but was still often able to express his wishes with some clarity and force

DE was married to JE. In August 03 DE was living with JE at home. JE felt she could not care for DE and placed him on a chair on the pavement in front of the house and called the police

The local authority placed him in two care homes He had lots of contact with the outside world, never subject to physical or

chemical restraint DE repeatedly expressed the wish to live with JE and JE wanted DE to live with

her SCC would not agree to DE returning to live with or visit JE and made it clear

that if JE were to persist in an attempt to remove DE, SCC would call the police The supposedly incapacitated person’s wife brought declaratory relief

proceedings against a County Council for keeping her husband in a care home for 9 months before the action.

No perimeter security and man could leave at any time by operating a push pad but nonetheless he is de facto deprived of his liberty

DE and JE –v- SCC

Result: The key issue is whether the person is free to leave The distinction between deprivation of and a restriction

upon liberty is one of degree or intensity and not one of nature and substance

In this case the man was deprived of his liberty Misrepresenting one’s legal powers can be as bad as

locking someone upLesson: Assess for capacity and document best interests,

and don’t wait to be sued – go to Court and ask first, if you really don’t want to provide care at home with 24 hour supervision….

LLBC v TG and JG, KR (2007)

FactsTG a 78 year old man, lacking capacity and suffering from dementia and cognitive impairment. He was resident in a care home but was admitted into hospital with pneumonia and septicaemia. The original care home terminated his placement and the local authority were trying to find an alternative home when he was ready for discharge. Whilst in hospital there was a dispute between the LA, TG’s daughter and granddaughter about TG’s future. The relatives wanted TG to live with them, the LA believed TG needed 24 hr care in a residential care home. The LA applied for an order directing that TG be delivered to the care home identified as appropriate by the council. He originally went to the care home. The relatives were not informed of the hearing. The order was changed and TG went to live with the relatives. The relatives claimed deprivation of liberty whilst TG was at the care home.

LLBC v TG and JG,KR

Human Rights Issues TG was unlawfully detained in breach of Article 5 as a result of the court order requiring

him to go to and remain at Tower Bridge Care Centre The procedure conducted under the Inherent jurisdiction of the High Court failed to

meet TG’s rights under Art 5 (4) to determine the lawfulness or otherwise of his detention

Outcome Tower Bridge Care Centre was an ordinary care home where only ordinary restrictions

on liberty applied The family were able to visit TG on a largely unrestricted basis and were entitled to

remove him from the house for outings TG was personally compliant and expressed himself as happy at Tower Bridge There was no occasion when he was objectively deprived of his liberty The placement was properly authorised by the court, resulting from a proper

assessment of TG’s capacity and gave the ability for the family to apply to vary order

This case was near the borderline between mere restriction of liberty and Article 5 detention, but looked at as a whole and having regard to relevant circumstances, it falls short

Re PS (An Adult) (2007) – The Sunderland Case

Facts : Case involved an elderly lady born in 1925 who it was subsequently found lacked capacity

and suffered from physical ill health Admitted to hospital on 22 January 2007. Ready for discharge by 7 February 2007. Crisis emerged when her daughter informed the hospital that she was intending to discharge

her mother into her own care rather than that of a residential care and elderly mentally infirm unit where elderly lady had lived since July 2006. Daughter asked hospital not to tell the LA of what she was planning.

Issues : Can the court make an order preventing the elderly woman’s discharge from the care of the

treatment unit preferred by the LA Can the court appoint a receiver to prevent the daughter from dissipating her mother’s

savings and pension rather than require the LA to make an application under the Mental Health Act 1983

Results: A judge exercising the inherent jurisdiction of the court has power to direct that the adult

shall be placed at and remain in a specified institution such as a hospital, residential unit, care home or secure unit.

There is no reason why the mere existence of an available remedy under Part VII of the MHA 1983 should preclude the exercise of the inherent jurisdiction in an appropriate case.

A perfect case to illustrate judges moulding and adapting the inherent jurisdiction so that is compatible with the requirements of Article 5 – therefore closing the Bournewood Gap

The new regime

A Bournewood authorisation relates solely to the issue of deprivation of liberty

It does not give authority to treat people or do anything else that would normally require their consent

Treatment must not conflict with a valid decision made by a donee of a Lasting Power of Attorney or Deputy

May not be sought where MHA 1983 could be used instead Advance Decisions may be relevant If someone is being given life sustaining treatment or some

other intervention is being done to prevent serious deterioration in condition then there is positive lawful authority (and not just a defence to legal liability) whilst determination is sought from Court of Protection on the issue (new Section 4B of the Act)

AssessorsCarry out assessments

Managing AuthorityHospital or Care Home

Responsible for care and requesting an assessment of deprivation of liberty

Relevant PersonPerson being deprived of liberty

RepresentativeProviding independent support

Family/Friends/CarersConsulted, involved and provided

with all information

Supervisory BodyPCT or LA

Responsible for assessing the need for and authorising deprivation of liberty

IMCA Court of Protection

Responsibilities in Deprivation of Liberty cases

Practical Steps to reduce the risk of deprivation of liberty and minimise risk of legal challenge…

Ensuring decisions are taken and reviewed in a structured way and reasons recorded. Protocols for decision making should include consideration on whether deprivation of liberty may arise and how it could be avoided

Effective, documented care planning Proper assessment of whether the person lacks capacity to decide

whether or not to accept the care proposed Ensuring admissions to residential care or hospital are fully considered

and any restrictions placed on the person kept to a minimum Ensuring proper information is given to person, carer and family and

friends for the purpose and reason for admission Taking proper steps to ensure person retains contact with family,

friends and carers Ensuring assessment of incapacity and care plan are kept under

review

Key points for Care homes and hospitals (managing authorities)

Incorporation into care planning the need for assessments on whether a person has capacity to consent to what is proposed and if not whether their actions are likely to result in deprivation of liberty

Must not deprive a person of their liberty, unless in an emergency, until a standard authorisation to do so has been issued by supervisory body

Such authorisation must be requested and then implemented by managing authority

Authorisation must be sought in advance of deprivation of liberty unless in extremely urgent situations

Any conditions attached to authorisation must be complied with by managing authority

A managing authority should monitor whether the relevant person’s representative maintains regular contact

Key points for local authorities and PCT’s (supervisory bodies)

They will receive applications from managing authorities for standard authorisations of deprivation of liberty

They will need to ensure that sufficient assessors are available to meet the needs in their area and that they have skills, qualifications and training to perform the function

Before an authorisation is given the supervisory body must have requested written assessments to ensure criteria met

Authorisation may not be given unless the assessors recommend it Duration must be specified and must not exceed 12 months Conditions may be attached Specified people must be notified of the decision in writing For every person who is under a standard authorisation for deprivation

of liberty, the supervisory body must appoint a “relevant person’s representative

At any time whilst the authorisation is in force the relevant person, the relevant person’s representative or IMCA can ask for the authorisation to be reviewed

Key points for both managing authorities and supervisory bodies

Whilst an authorisation is in place lasting for up to 12 months, the managing authority may seek fresh authorisation

Authorisation should be reviewed and revoked if there has been a significant change in someone’s circumstances

A decision can be challenged by a relevant person, relevant person’s representative by way of application to Court of Protection

If there is a question of whether a person should be deprived of their liberty it will be lawful if it is necessary for the purpose of life sustaining treatment or a vital act to prevent serious deterioration in their condition whilst the issue is resolved

The complete process of assessing and authorisation for deprivation of liberty should be clearly recorded, monitored and audited as part of an organisation’s governance structure

Management information should be recorded and retained, and used to measure the effectiveness of the deprivation of liberty processes

The deprivation of liberty authorisation process – requesting an authorisation

Managing authority must identify every person who is incapable of consenting to admission and is of risk of being deprived of his/her liberty

For each “relevant person” the managing authority must apply to a “supervisory body” for a standard authorisation for depriving that person of their liberty

A standard authorisation must be obtained before the deprivation of liberty begins, unless really urgent

Remember the transitional arrangements proposed for April 09

A supervisory body is responsible for considering requests, commissioning assessments and authorising

Hospital England If a PCT commissions the relevant care or treatment, that PCT If the National Assembly for Wales or an LHB in Wales commissions

the relevant care and treatment in England, the NAW In any other case, the PCT for the area in which the hospital is situatedHospital Wales National Assembly for Wales or an LHB unless a PCT commissions

the relevant care and treatment in Wales, in which case the PCT will be the supervisory body

Care Home – England or Wales Local authority for the area in which the person is ordinarily resident If of no fixed abode then the local authority for the area in which the

care home is situated

Process – 2 types

Standard (Schedule A1 Part 4) and Urgent (Schedule A1 Part 5) The managing authority must request a standard authorisation

when it appears likely that, either currently or at some time during the next 28 days, someone will be accommodated in their hospital or care home in circumstances which amount to a deprivation of liberty.

The request must be made to the supervisory body – preferably in advance

If this is not possible, an urgent authorisation may be issued by the hospital or care home itself if certain criteria are met, who must then obtain standard authorisation within 7 calendar days

Regulations – The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 laid before Parliament on 20th May 2008 state what information should be provided

The assessment process

An authorisation can only be granted where it is : In the best interests of the person that they be

detained as a resident of the hospital or care home in circumstances which amount to a deprivation of liberty;

Necessary that the person be a patient in the hospital or care home in order to prevent harm to him/herself; and

A proportionate response to the likelihood of him/her suffering harm and the seriousness of that harm

What must a request include ?

The person’s name and gender The person’s age or where this is not known whether MA

reasonably believes the person is aged 18 or over The address and telephone number where the relevant

person is currently located The name, address and telephone number of the MA and

name of person dealing The purpose of the proposed deprivation of liberty,

including relevant care plans and needs assessment The date from which the deprivation of liberty

authorisation is sought Whether an urgent authorisation has been issued and, if

so, the date of expiry Other relevant information, if available is requested, such

as medical information, diagnosis of mental disorder, details of proposed restrictions amongst others

Where should applications be sent if it is a care home requesting authorisation?

If made by a care home, to the LA for the area in which the relevant person is ordinarily resident

If relevant person is not ordinarily resident in the area of the LA or if the care home does not know where the person lives, or the person does not come from England or Wales, the application should be sent to the LA in whose area the care home is located

Where should applications be sent if it is a hospital requesting authorisation?

If care is commissioned by PCT, to that PCT If care is commissioned by Welsh Ministers, to

LHB for the area in which the relevant person is ordinarily resident

If care is commissioned by LHB, to that LHB In any other case, (care commissioned privately)

to the PCT for the area in which the relevant hospital is situated

If application is sent to wrong SB, can be passed on to correct one without need to re-apply

What action will the supervisory body take ?

Upon receipt of the application for deprivation of liberty they should as soon as is practical and possible Consider whether the request is appropriate

and should be pursued, and Seek any further information that it requires

from the managing authority to help with the decision

As soon as they confirm that the request should be pursued, they must obtain the relevant assessments to ascertain whether the qualifying requirements are met.

What happens when MA and SB are the same organisation?

They can act in both capacities Regulations have been relaxed in relation to the

eligibility criteria for independent assessors The Government have moved from a position of

preventing a person from being a best interests assessor where they work in the same hospital or care home as the relevant person, to one where a best interests assessor is prevented from fulfilling the role where they are actually involved in the care of the relevant person

The qualifying requirements – 6 written assessments

In order to ensure that the deprivation of liberty provisions apply and criteria met, the supervisory body must obtain six written assessments of the relevant person Age assessment Mental Health Assessment Mental Capacity Assessment Best Interests Assessment Eligibility Assessment No refusals Assessment

Eligibility to carry out assessments - general

All assessments (other than age assessment) must be carried out by persons:

Who are insured in respect of any liabilities A supervisory body is satisfied that they have

successfully completed a course of study that is approved by the Secretary of State

A supervisory body is satisfied that they have the skills and experience appropriate to the assessment

There must be a minimum of two assessors The mental health and best interests assessors must

be different people One of main concerns in consultation was the number

of assessors needed to complete the six assessments It was made clear that two assessors could be used to

do all 6 assessments and this would be expected

Age assessment

Establish whether the relevant person has reached 18. The legal basis for depriving a person who lacks capacity and is under the age of 18 in a Bournewood type scenario is Section 25 of the Children Act 1989 which meets the requirements of Article 5 of the ECHR or Section under the Mental Health Act 1983

Person undertaking age assessment will be anyone deemed appropriate and could be an individual doing other assessments

Mental health assessment

This is to confirm that the person has been diagnosed as having a mental disorder within the meaning of the MHA 1983.

The assessment disregards the special provisions in that Act that restrict detention in relation to persons with a learning disability.

A person with a learning disability can receive deprivation of liberty safeguards, if appropriate and the other assessments are positive, whether or not their disability is associated with abnormally aggressive or seriously irresponsible conduct

Likely to be undertaken by a doctor approved under Sec 12 MHA 1983 or be a registered medical practitioner who has special experience in the diagnosis and treatment of mental disorder

If the person is mentally disordered but also sectionable, professionals will have to make a judgment as to which act to apply

Both must have completed MCA 2005 mental health assessor training

Mental Capacity assessment

Necessary to establish whether the relevant person lacks capacity to consent to the arrangements proposed for their care

Likely this assessment will be undertaken by anyone who is eligible to act as a mental health or best interests assessor

Must take into account the need for the assessor to have understanding and practical experience of the nature of the person’s condition and it’s impact on decision making

Use an eligible person who knows the relevant person if this will benefit them

Best Interests assessment

Involves two stages Stage One - to establish whether deprivation of liberty is

occuring or is going to occur and, if so, whether: Stage Two -

It is in the best interests of the person to be deprived of liberty It is necessary for them to be so deprived in order to prevent

harm to themselves, and Such deprivation is a proportionate response to the likelihood

of the person suffering harm and the seriousness of that harm Assessment must be undertaken by an approved mental

health professional or a social worker, nurse, occupational therapist or psychologist with the skills and experience required by Part 1, (5) (1) a,b,c,d of the Regulations

Eligibility assessment

Status, or potential status, under the Mental Health Act 1983 – confirms whether the relevant person should be covered by that Act rather than the deprivation of liberty safeguards under the Mental Capacity Act 1983

It must be confirmed that person is not detained under the MHA 1983 or

the authorisation if granted, would be inconsistent with an obligation placed on them under the Mental health Act 1983, such as a requirement for them to live somewhere else. Leave of absence from detention under the Mental Health

Act 1983 Subject to guardianship Supervised community Treatment Conditional Discharge

Eligibility assessment

In addition, if the deprivation of liberty in a hospital wholly or partly for the purpose of treatment for mental disorder, the person will not be eligible if

they are currently on leave of absence from detention under the MHA 1983, or subject to supervised community treatment or conditional discharge, in which case powers of recall under MHA 1983 should be used, or

They object to being admitted to hospital, or to some or all the treatment they will receive there for mental disorder, and they meet the criteria for an application for admission under Section 2 or Section 3 of the Mental Health Act 1983

Regulations state that anybody the supervisory body considers to be appropriate – having relevant experience, training and skills specifications, may undertake the assessment

No refusals assessment

To establish whether an authorisation to deprive a person who lacks capacity to consent of their liberty would conflict with other existing authority for decision making for that person

Likely to be undertaken by anybody supervisory body deems has appropriate skills and experience to perform the role

A “refusal” includes A valid and applicable advance decision relating to

some or all of the treatment that the person would receive if an authorisation was granted; and (if it is treatment for mental disorder sectioning the person trumps that type of AD)

A valid decision by a donee of a Lasting Power of Attorney or Court Appointed Deputy

Time frame for assessments

All assessments must be completed with 21 days from the date that the supervisory body receives a request from a managing authority

Where a supervisory body receives a request for a standard authorisation and the managing authority has given an urgent authorisation, all assessments required for that standard authorisation must be completed during the period the urgent authorisation is in force

Standard Authorisation – Schedule A1 Part 4

Only the supervisory body may give a standard authorisation

The managing authority must have requested it under their duty to request authorisation, three possibilities Where relevant person is not yet accommodated, is

likely to be a detained resident, and meets all the qualifying requirements

Where relevant person is already accommodated, is likely to be a detained resident, and meets all the qualifying requirements

Where the relevant person is a detained resident and meets all of the qualifying requirements

Duty to request authorisation: change in place of detention

Managing authority must request a standard authorisation, if one has already been given, is still in force; and

there is to be a change in place of detention ie new care home or hospital

The application should be made before the move takes place

If the move has to take place so urgently that this is impossible, the managing authority of the new hospital or care home will need to issue an urgent authorisation

The only exception will be if care regime in new hospital or care home does not involve deprivation of liberty

Selection of Assessors

General Assessors must not : Be financially interested in the care of the relevant person Be a close relative of the relevant person; and Be a close relative of a person who is financially interested in

the care of the relevant person Best Interests Assessors must not:

Be involved in the care, or making decisions about the care of the relevant person

If assessment relates to detention in a care home, be employed by the care home

If assessment relates to detention in a hospital, not employed to work at the hospital

Can be an employee of the supervisory body or managing authority, but must not be involved in the care or treatment of the person they are assessing nor in decisions about their care, or in a line management relationship

Examination of records

An assessor may, at all reasonable times, examine and take copies of Any health record Any record of, or held by, a local

authority and compiled in accordance with a social services function

Any record held by a person registered under Part 2 of the CSA 2000

Equivalent assessment already carried out

The supervisory body are not required to secure a particular kind of assessment if: They already have one that has been carried

out in the last 12 months It complies with all requirements under

Schedule A1 Supervisory body is satisfied that there is no

reason to believe that it is no longer accurate Of which the supervisory body has a written

copy

Duty to give authorisation

Supervisory body must give a standard authorisation if All assessments are positive They have written copies of all assessments

They must decide duration - must not exceed the maximum authorisation period stated in the best interests assessment

It can be subject to conditions It must be in writing They must give a copy to relevant persons

representative, managing authority, relevant person, IMCA, every person consulted by best interests assessor

If the authorisation is refused they must give notice to all of the above

They must keep a record of all authorisations given

What happens if criteria not met ?

If any assessments conclude that one of the criteria is not met, then the assessment process should stop immediately and authorisation may not be given

All relevant people, managing authority, IMCA etc must be notified

If not given due to eligibility criteria then consideration should be given to making the person subject to the Mental Health Act 1983

Actions following a decision

If any assessment concludes that the person does not meet the criteria, the supervisory body must turn down the request

Notify the managing authority, relevant person, IMCA or RPR

Managing authority will need to decide if any action is needed bearing in mind the reasons why authorisation was refused ie no action, or care plan may need to be changed to avoid any deprivation

What are the options Go back to commissioner and ask for more money Give notice to say “no thank you” Give notice to the individual’s purchaser

Responsibilities of the commissioners of care……what the Code says

Supervisory bodies and other commissioners of care will need to purchase care packages in a way that makes it possible for managing authorities to comply with the outcome of the deprivation of liberty safeguards assessment process when a request for a standard authorisation is turned down

What to do with a “self funder” may present particular problems because of those controlling the funding

Duty to give information about the effect of authorisation

The managing authority must both orally and in writing take steps to ensure the relevant person understands the effect of the authorisation Right of application to the Court Right to request a review Right to have a an IMCA appointed How to have an IMCA appointed

Right of third party to ask whether authorisation is needed

If there is a relevant person who it is felt is being deprived of their liberty which is unauthorised An eligible person (anyone other than the

hospital or care home) may request a supervisory body to decide upon the issue

They must have told managing authority that they think there is an unauthorised deprivation of liberty

They must have asked the managing authority to request a standard authorisation; and

The managing authority has not requested one within a reasonable period of time

Urgent authorisation – Schedule A1 Part 5

Only the managing authority of relevant hospital or care home can give an urgent authorisation

The managing authority must give an urgent authorisation if, They need to make a request for a standard

authorisation, and They believe that the need to detain the relevant

person is so urgent it needs to begin before they make the request, or

They have made a request for a standard authorisation, and

They believe that the need to detain the relevant person is so urgent it needs to begin before the request is disposed of

Urgent authorisation – Schedule A1 Part 5

The authorisation must not exceed 7 days It may be extended once for a maximum of a

further 7 days It must be in writing The managing authority must keep a written

record The managing authority must inform orally and in

writing, the relevant person and IMCA The managing authority must ensure the relevant

person understands the effect of the authorisation and rights of appeal

Eligibility requirement not met

If a standard authorisation has been given but relevant person has ceased to meet the eligibility requirement, managing authority must give notice to the supervisory body

The standard authorisation will then be suspended

Notice must be given to relevant person, relevant persons representative and managing authority

Disputes about the Place of Ordinary Residence

When a local authority receives a request from a care home for a standard authorisation, or from an eligible person on a potential unauthorised deprivation of liberty in a care home, and

The local authority wishes to dispute that it is the supervisory body, and

A question as to the ordinary residence of the relevant person is to be determined by the Secretary of State……..

Disputes about the Place of Ordinary Residence

The local authority must act as supervisory body in relation to a request until the determination of any question as to the ordinary residence of the relevant person

If another local authority agrees to act as supervisory body in place of the one approached, then they will become the supervisory body until issue sorted out

When the issue of ordinary residence is determined the local authority identified as the supervisory body shall become the supervisory body

Relevant person’s representative

Appointment must begin as soon as a best interests assessor is selected by the supervisory body when a standard authorisation is requested

Best interests assessor has to consider whether it is possible to recommend a representative

Person with capacity may be invited to select their own LPA donee or Deputy may select someone Any appointment and functions of, a representative is in addition

to, and does not affect, any appointment of a donee or deputy If no one makes a selection, best interests assessor must identify

someone, if they do not select then: A supervisory body may select someone in a professional capacity

who they may make payments to New regulations laid on 12th September 08 make an amendment to

ensure that if they select the RPR “they must not be employed by the supervisory body” to avoid any potential conflict of interest

Role of Relevant Person’s representative

To maintain contact with the relevant person

To represent and support them in all matters relating to the operation of the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedure or making an application to the Court of Protection.

Eligibility of a person to be a representative

Eligible if: 18 or over Able to keep in contact with the relevant person Not prevented by ill health Willing to be a representative Not financially interested in the person’s managing

authority Not a close relative of a person who is financially

interested in the person’s managing authority Not employed by, or providing services to, the person’s

managing authority (care home) Not employed to work in the person’s managing authority

in a role that is, or could be, related to the person’s case (hospital)

Not employed to work in the person’s supervisory body in a role that is, or could be, related to the person’s case

Appointment of Representatives

Appointment must be in writing The representative must inform the supervisory

body in writing if they are willing to accept the appointment

The appointment must be made for the period of the standard authorisation

The supervisory body must send copies of the written appointment to the appointed person, relevant person, relevant person’s managing authority, any donee or deputy, any IMCA, any person consulted by best interests assessor

Appointment ceases if….

Appointment ceases if representative dies or are unwilling to carry on appointment, period of role ends, relevant person objects to them continuing in

their role, a donee or deputy objects to them continuing

their role, the supervisory body terminates the appointment

if not satisfied they are doing their job or The supervisory body terminates the

appointment because the person is no longer eligible to be a representative

Instruction of an IMCA

If there is a delay in appointing a relevant person’s representative then the managing authority must notify the supervisory body, who must instruct an IMCA to represent the relevant person until a representative is appointed

Their role will be that of a relevant person’s representative until one is appointed, when the IMCA role falls away

After a representative is appointed, the IMCA may still apply to the Court of Protection for permission to take the relevant person’s case to court in connection with the standard authorisation. IMCA’s may also approach the Official solicitor with the facts if they wish to challenge it legally

Both a person deprived of their liberty under a standard authorisation and their representative have the statutory right of access to an IMCA

Additional rights and responsibilities of the IMCA if instructed at initial stage

Give information or make submissions to assessors Receive from the SB copies of any deprivation of liberty

assessments Receive a copy of a standard authorisation if granted Be notified by SB if they are unable to give a standard

authorisation if assessments not positive Receive a copy of any urgent authorisation Receive copy of a notice declining to extend duration of

urgent authorisation Receive a copy of a notice that an urgent authorisation

ceases to be in force Apply to the Court of Protection for permission to take

the relevant person’s case to Court in connection with the giving or refusal of a standard or urgent authorisation

Role of an IMCA

Explain the authorisation to the relevant person, what it means why it has been granted why it is considered that the person meets the

criteria for authorisation How long it will last How to trigger a review or challenge to the Court of

Protection Provide support with a review or challenge Make submissions to the supervisory body on

whether a qualifying requirement is reviewable

New jurisdiction for Court of Protection

Where either an urgent or standard authorisation has been given under Schedule A1

The court may determine the following questions (a) whether the relevant person meets one or more

of the qualifying requirements; (standard) (a) whether the urgent authorisation should have

been given; (urgent)  (b) the period during which the standard

authorisation is to be in force; (urgent and standard) (c) the purpose for which the standard authorisation

is given; (urgent and standard) (d) the conditions subject to which the standard

authorisation is given. (urgent and standard)

New jurisdiction for Court of Protection

If the court determines any of the previous questions the court may make an order—    (a) varying or terminating the standard

authorisation, or (b) directing the supervisory body to vary or

terminate the standard authorisation. Where the court makes either of the above

orders, the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

An order may, in particular, exclude a person from liability."

Monitoring, reviews and challenges

A managing authority has a duty to monitor the case on an ongoing basis to see if the person’s circumstances change

The managing authority must set out in the care plan clear roles and responsibilities for monitoring

The supervisory body must carry out a review if requested to do so by the person concerned, their representative, the managing authority or at any other time

They must tell the above that a review is going to be carried out They must decide which, if any, of the qualifying requirements need to

be reviewed They should record the reasons for decisions taken In general, review processes should follow the standard authorisation

processes If reviewed and requirement still met, reasons need to be recorded, if

not met, authorisation must be terminated immediately Written notice must be given by the supervisory body of the outcome

to the above

What are the grounds for review ?

Person no longer meets all 6 qualifying requirements

The person is ineligible because they now object to receiving mental health treatment in hospital

The reason why the person meets a qualifying requirement is not the reason stated in the authorisation

There has been a change in the person’s situation

Who will monitor the safeguards ?

Responsibility for the inspection process will be on new regulator created by merging the existing inspectorates

Commission for Social Care Inspection + Healthcare Commission + Mental Health Act Commission

Called the CQC – Care Quality Commission Will be established during 2008 and expected to

be fully operational by 2009/10

What will they do ?

Monitor the manner in which the deprivation of liberty safeguards are being operated by managing authorities and supervisory bodies by Visiting hospitals and care homes Interviewing people accommodated in hospitals and

care homes Requiring production of, and inspecting records

Report annually to the Secretary of State summarising activity and findings

The inspection body will have the power to require supervisory bodies and managing authorities of hospitals and care homes to disclose information to them

A scenario

A very physically robust person with dementia is living in a care home on a dementia wing access out of which is locked off. The wing is in the shape of a quadrangle.

The client has a symptom which compels them to pace – run, in fact – whenever they get the chance. The person is not trying to leave the facility, it is felt, but sometimes needs more of a physical challenge than available in the dementia quadrangle.

The staff take 20 minute turns and escort the person at speed, whenever she wants to be pacing – but the corridor exit itself, is locked.

Is this deprivation of liberty?

A scenario…

A person in a registered care home on continuing NHS health funding because of their extremely challenging behaviour towards themselves and others, is disinhibited through brain injury. The person tends to strip off in public and has found some predatory teenagers who charge him for sexual favours if they find the opportunity.

He is only allowed out if escorted, and this provision is only made available during the day shift. He is variably

A) compliant with that system B) doesn’t understand why he is not able to be escorted

at night C) sometimes not compliant and tries to get out

because he is sexually frustrated and is prepared to pay….

A scenario…

A person is on a voluntary ward, having been taken there under sedation. He is 68, dementing, and difficult to manage.

His spouse does not want to let him come home again, but he doesn’t know this.

He is trying to leave. The nurse says ‘If you try to go, I will use

my s5 holding powers under the Mental Health Act to hold you here until you can be detained”.

Is this deprivation of liberty?

A scenario…

A young person with learning disabilities associated with epilepsy – is used to wearing a protective helmet.

The man has gone off the idea of wearing it – his girlfriend has said she doesn’t like it

The man is incapacitated in relation to some risks, but understands what the helmet is for, basically.

He has no experience within his recall of going out alone and unescorted

Support worker says A) You can’t go out without it on (ie I will stop you from

going, or I will not unlock the door) B) I won’t go with you, unless you wear it.

Is this deprivation of liberty?