Deprivation of liberty screening tool Mental Capacity Act Project Team

Aims and objectives of the session Understand liberty and a deprivation of liberty Be able to use the screening tool to scope the scale of deprivation of liberty in the community Why use the tool? First and foremost it’s about people and their rights To identify the scale of deprivation of liberty and to be able to plan a response and identify the resources need

The principles: 1. The assumption of capacity We always start by assuming everyone we work with has capacity to make their own decisions, until there is evidence to suggest otherwise This principle protects the right of adults to make their own decisions If we claim someone we are working with lacks capacity we must provide proof – this proof is the two stage assessment of capacity, it is up to us to prove the person lacks capacity it is not up to them to prove they have capacity Therefore we are required to gain our patient’s consent to provide care, treatment or support, we must respect the rights of our patient’s to refuse treatment if they have capacity to decide.

The principles: 2. Maximising capacity Before it can be claimed that someone lacks capacity everything practical must be done to enable them to make a decision for themselves Using different forms of communication / providing information in an accessible format Having a structured programme to improve the person’s capacity (i.e. through education) Treating any medical condition that may be impairing the person’s capacity In emergency and urgent situations we may not have time to provide additional support and information and may have to make an assessment of the patient’s capacity there and then

The principles: 3. People can make unwise decisions A person shouldn’t be treated as unable to make a decision, because the decision they make appears unwise to others We all have different values, wishes and beliefs We shouldn’t confuse an assessment of the person’s capacity with an assessment of what we believe is in their best interests, the assessment isn’t on the basis of whether the person choose what you think is the right choice Different people give different weight to different things

The principles: 4. Act in the best interests of people who lack capacity Follow the best interest checklist Best interests is a person centred process which should focus on the values, wishes and beliefs of the person and what they would consider if they were making a decision for themselves The exception to the best interests principle is if the person has made a valid advance decision to refuse treatment, or is being involved in research, as other safeguards apply in these circumstances If someone holds a valid and applicable Lasting Power of Attorney (LPA) they may be acting as the decision maker, however they must still act in the best interests of the person

The principles: 5. Act in the least restrictive way of people who lack capacity Before the decision is made consideration should be given to whether there is a less restrictive course of action Best interests decision making is restrictive as the person is no longer in control over the decision Can we avoid making a decision on the person’s behalf? Can we delay the decision so that the person can make it for themselves if they can regain capacity? Can we act in accordance with their views? How can we facilitate the person having the most amount of personal freedom?

What does it mean for you? What is liberty? A human right Free will What does it mean for you? Personal freedom Lady Hale described the “…right to physical liberty. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty.”

What is a deprivation of liberty? Not being free to leave Can only go out with supervision Not allowed to live elsewhere Restrictions over social contacts Supervision and control Lady Hale - “A gilded cage is still a cage.”

What is a deprivation of liberty? Arrested by the Police Detained under a section of the Mental Health Act The above is in accordance with a procedure proscribed by law A deprivation of liberty is unlawful unless it has been authorised by a procedure proscribed by law

What is a deprivation of liberty? There must be the following three elements for a deprivation of liberty to be occurring: An objective element of confinement in a particular restricted space for a not negligible length of time A subjective element of a lack of consent, because the person lacks capacity to consent to the care, treatment and / or accommodation that deprives them of their liberty The deprivation of liberty must be one for which the state is responsible, through paying for, arranging and / or providing the care, treatment and / or accommodation that deprives the person of their liberty

History of the Deprivation of Liberty Safeguards (DoLS) The most important cases: HL – Bournewood Gap The case that led to the Deprivation of Liberty Safeguards Surrey (MIG & MEG) Cheshire West (P) These cases led to the Supreme Court ruling that outlined the ‘Acid Test’ Re X Streamlined Court of Protection application process for authorising deprivation of liberty in community settings

HL v UK - the Bournewood Gap HL was an adult male who was autistic and had profound learning disabilities He had lived in Bournewood Hospital from the age of 13 for over thirty years In 1994 he was discharged into the community to live in an adult foster placement with carers Mr and Mrs 'E' On 22 July 1997 HL became agitated at a day centre he attended, and was admitted to the Accident and Emergency Department at Bournewood Hospital under sedation Due to the sedative, HL was compliant and did not resist admission, so doctors chose not to admit him using powers of detention under the Mental Health Act HL never attempted to leave the hospital, but his carers were prevented from visiting him in order to prevent him leaving with them Mr and Mrs 'E' sought a judicial review of the decision to detain HL https://youtu.be/pz5Ecovjs4w

HL v UK - the Bournewood Gap Case was before the introduction of the Human Rights Act (1998) & the Mental Capacity Act (2005) - the House of Lords considered whether HL had been unlawfully detained under the common law, which they found he hadn’t Although HL was in fact released back into the care of Mr and Mrs E in December 1997 after being held in hospital for five months, the case was taken to the European Court of Human Rights (ECHR) The ECHR found that HL had been deprived of his liberty The ECHR said that the deprivation of liberty had not been in accordance with a procedure proscribed by law – therefore the Deprivation of Liberty Safeguards is the UK’s response to bridge the Bournewood Gap and provide a procedure in law for assessing and authorising deprivation of liberty, where it is in the best interests of an adult who lacks capacity to consent to those arrangements The Deprivation of Liberty Safeguards apply in Hospitals and Care Homes registered under the Care Standards Act (2000)

Deprivation of liberty Hospitals and care homes Right to Liberty protected by Article 5 of the Human Rights Act 1998 Deprivation of liberty unlawful unless authorised by a process in law Deprivation of liberty will only be authorised if the person lacks capacity to consent to those arrangements, the deprivation is found to be in their best interests and it is a proportionate response to the likelihood of harm and the seriousness of that harm Hospitals and care homes Community Settings Registered under the Care Standards Act 2000, only applies to adults over 18 years old Person’s own home, supported living, sheltered or supported housing, or for applications relating to under 18s Authorised through the Deprivation of Liberty Safeguards (DoLS) Authorised by application to the Court of Protection 6 assessments carried out by Best Interests Assessor and Mental Health Section 12 Doctor Re X two tier application process: Table top exercise Full hearing Standard Authorisation granted Court or Personal Welfare order granted Authorisations can be granted for up to, but no longer than 12 months Relevant Person’s Representative (RPR) and / or Independent Mental Capacity Advocate (IMCA) involved Lady Hale described the “…right to physical liberty. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”

The ‘Acid Test’ 3 separate cases P – Cheshire West, MIG & MEG – Surrey Cases were in community settings therefore outside of the scope of the Deprivation of Liberty Safeguards which apply in hospitals and care homes and therefore required authorisation from the Court of Protection (as a deprivation of liberty is unlawful unless authorised in accordance with law) Lady Hale stated in the judgement that it is “…axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race.”

The ‘Acid Test’ Supreme Court ruling sought to clarify the definition of a deprivation of liberty. A person is held to be being deprived of their liberty if they are: Not free to leave It’s is not relevant to whether the person is being deprived of their liberty if the person has never tried or been prevented from leaving, what is relevant is whether the person would be prevented from leaving the institution if they did try to leave Under continuous supervision and control Continuous supervision and control has not been defined, this does not necessarily mean that the person is supervised at all times of the day, significant periodic observation could qualify as continuous supervision and control, additionally this could be through the use of assistive technology, i.e. pressure pads, doors alarms etc. Helpful briefing paper clarifying the meaning of ‘not free to leave’ and ‘continuous supervision and control’: http://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2014/04/CPA-briefing-DoLS-examples-May14.pdf

Two tier application process Re X Case that identified a streamlined process for making applications to the Court of Protection to authorise deprivation of liberty in the community Two tier application process Table top exercise Full hearing Fixed cost Not fixed cost Only evidence is from the applicant P (and others) is a party to proceedings For non contentious cases only (essentially an approval of the care planning that constitute the deprivation of liberty) For cases where there is a dispute or the care planning that has been submitted for table top exercise is not clear

The screening tool The amount of people being deprived of their liberty in the community is not known at the moment and part of the purpose of the tool is to scope the numbers of people at risk of being deprived of their liberty, this will aid future resource planning in assessing the number of applications to the Court of Protection that will be required Fairly simple and efficient to use The overall purpose of the tool is to promote the best possible practice to safeguard people’s rights and ensure compliance with the legislation Excel wordbook for recording data and outcomes We will arrange a further follow up session to discuss how you have found using the Screening Tool and make any amendments based on your feedback Please take your hand-outs and MCA prompt card

The screening tool Two tiers of risk High risk Medium risk P is at a high risk of being deprived of their liberty in light of the ‘Acid Test’ P at a medium risk of being deprived of their liberty, more in-depth review required Authorisation is very likely to be required Authorisation may be required

Any questions ?