Deprivation of Liberty Safeguards (DOLS)

OBJECTIVES/LEARNING OUTCOMES Origin, Aims & Legal context of DOLS How DOLS fits in with the MCA 2005 Restriction versus deprivation Third party concerns and referral process Authorisation process and reviews Authorisations granted and declined

CURRENT POSTION Mental Capacity Act (MCA) 2005 was fully implemented on 1st October 2007 MCA applies to those 16 & over who may lack capacity to make decisions for themselves, because their mind or brain is affected. MCA introduced the two-stage test of capacity Provides protection from liability, under section 5, for those delivering care & treatment to individuals who lack capacity providing the Act is followed, particularly - the 5 core principles and - the carer acts in the person’s best interests Section 6 explains when the use of restraint may provide protection from liability, if necessary to prevent harm to the person but DOES NOT ALLOW ANYONE TO DEPRIVE A PERSON OF THEIR LIBERTY this has been addressed through the Deprivation of Liberty Safeguards (DOLS)

WHAT IS DOLS? The Deprivation of Liberty Safeguards (DOLS) introduced on 1st April ’09 is new legislation and an addendum to the Mental Capacity Act. NOTE: Everything in the MCA 2005 applies to DOLS DOLS code of practice should be read in conjunction with the MCA code of practice It will affect those aged 18 and over who have a mental disorder and lack capacity to understand the need for their care and treatment, who reside in a registered care home or hospital – where they need to be deprived of their liberty in order to prevent harm to themselves and there is no less restrictive option.

THOSE LIKELY TO BE AFFECTED BY DOLS The government expect it to affect people with the following: Dementia a learning Disability Some physical conditions i.e. trauma, stroke, acquired brain injury (including that caused by alcohol or drug misuse) Mental illness and the elderly

WHAT IS DOLS? - continued The deprivation of a person’s liberty is a very serious matter and should not happen unless it is absolutely necessary, and in the best interests of the person concerned. That is why the safeguards have been created: to ensure that any decision to deprive someone of their liberty is made following defined processes and in consultation with specific authorities.

ORIGIN OF DOLS This legal framework has been introduced to close the Bournewood gap and Strengthen the rights of hospital patients & those in care homes as well as Ensuring compliance with the European Convention of Human Rights (ECHR) The government accepts that there will be some people who will need to be cared for in circumstances that deprive them of their liberty and who do not meet the criteria of the MHA.

AIM OF DOLS To provide legal protection for those vulnerable people who are deprived of their liberty outside of the MHA To prevent arbitrary decisions to deprive a person of liberty and To give rights to challenge DOL authorisations The safeguards apply to people who lack capacity to consent to care or treatment and who are suffering from a disorder of the mind. The Government expects that implementation of the safeguards will reduce the numbers of people deprived of their liberty in care homes & hospitals.

SUMMARY Safeguards will apply to people aged 18 & over who: Reside in a registered care home or hospital Suffer from a mental disorder or disability of mind; and Lack the capacity to give consent to the arrangements made for their care or treatment; and For whom such care (amounting to a deprivation of liberty) is considered, after an independent assessment, to be a necessary & proportionate response in their best interests to protect them from harm.

RESTRAINT, RESTRICTION OR DEPRIVATION?

RESTRAINT A person is said to restrain someone lacking capacity if s/he uses, or threatens to use, force to do an act which the person resists, or restricts the liberty of movement whether or not the person resists. Restraint is appropriate when it is used to prevent harm to the person lacking capacity. And is a proportionate response to the likelihood and seriousness of harm . Appropriate restraint falls short of deprivation. Preventing a person from leaving a care home or hospital unaccompanied because there is a risk that they would try to cross the road in a dangerous way is likely to be viewed as a proportionate restriction. Similarly locking a door to guard against immediate harm is unlikely in itself to amount to a deprivation of liberty.

RESTRICTION/RESTRAINT ISSUES The European court indicated that the duration of restrictions is a relevant factor. This suggests that actions that are immediately necessary to prevent harm may not in themselves constitute deprivation of liberty. Where however, restriction or restraint is frequent, cumulative and ongoing, or if there are other factors present, then care providers should consider whether this has gone or is going beyond permissible restraint under the deprivation of liberty safeguards. RESTRICTION: Can be viewed as one of something which occurs sometimes. DEPRIVATION: Can be viewed as total control which is ongoing.

SPECIFIC AUTHORITIES Managing authority is the registered care home or hospital where the client resides Supervisory Body Is the Local Authority

NOTIFICATION When a hospital or care home identifies that a person who lacks capacity is being, or risks being deprived of their liberty they must apply to the supervisory body. for care homes and hospitals this will be the relevant local authority normal requests are for a standard authorisation managing authorities can make urgent requests – giving 7 (calendar) days for assessments to be completed When a supervisory body receives a request they must obtain 6 assessments for a standard authorisation these must be completed within 21 (calendar) days of receiving the request for an urgent authorisation assessments must be completed before the authorisation expires

SUPERVISORY BODY ACTIONS When it receives a request it must as soon as is possible: Consider whether request is appropriate and should be pursued. Seek any further information it requires from the managing authority. As soon as it confirms that a request for a standard authorisation should be pursued, it must commission the relevant assessments to ascertain whether the qualifying requirements of the dols safeguards are met. If the person has no (unpaid) relative/carer then they must instruct an IMCA. The supervisory body has a legal responsibility to select assessors who are both suitable and eligible. Assessments must be completed within 21 calendar days of supervisory body receiving requests (7 days for an urgent)

REQUIRED ASSESSMENTS Assessors There must be a minimum of 2 assessors The Mental Health and Best Interest Assessor must be different people. Assessments: Age. No Refusals Assessment. Mental Capacity Assessment. Mental Health Assessment. Eligibility Assessment. 6. Best Interests Assessment. If any assessments conclude the person does not meet the criteria for an authorisation the supervisory body must turn down the request for authorisation.

ASSESSMENTS Age Assessment – To establish whether person is 18 years or over? No Refusals Assessment - To establish whether an authorisation for DoL would conflict with other existing authorities for decision making for that person (Advance Decision, LPA, Court Deputy). Mental Capacity Assessment - To establish whether the relevant person lacks capacity to consent to the arrangements proposed for their care or treatment. Mental Health Assessment - To establish whether the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983. Eligibility Assessment - relates specifically to the persons status or potential status under The Mental Health Act 1983. To establish whether the person should be covered by the Mental Health Act 1983 or DoL under Mental Capacity Act 2005. Best Interests Assessment -To establish, first, is deprivation occurring, or going to occur. Second ,whether it is in their best interests and it is necessary to prevent harm to themselves and the DoL is proportionate to the likelihood and seriousness of the harm.

OTHERS CONCERNED ABOUT DOL Anyone with a concern e.g. a family member, can apply to the supervisory body to trigger an assessment as long as they have asked the care home or hospital to apply for an authorisation but it has not been done. This would lead on to the full assessment process if the finding is that the person is deprived of liberty.

STANDARD AUTHORISATIONS Person meets criteria: Supervisory Body must grant authorisation for DoL Time period of no longer than 12 months Authorisation must be in writing, stating, time period and any conditions Copies to be given to - the care home/hospital - the person concerned - any IMCA instructed - all interested persons consulted by the BIA A persons representative will be appointed to keep in touch with the person. Supporting them and to request a review or make an application to the court of protection if thought appropriate.

AUTHORISATION DECLINED Managing authority (MA) will need to revise the person’s actual or proposed care to ensure that a deprivation of liberty is not allowed to either continue or commence. Supervisory body (SB) and other commissioners of care will need to purchase care packages that make it possible for MA to comply with the outcome of a DOLS assessment if an authorisation is turned down. The actions that both the managing authorities and commissioners (from SB) of care should consider will depend on the reason for declining the authorisation:

AUTHORISATION DECLINED - continued Considered actions when authorisation declined: If the BIA concluded the person was NOT being deprived, then no action is likely to be necessary. BIA felt it was not in the person’s best interest – consider how the care plan could be changed. If person got capacity – consider how to support the person to make such decisions. If not eligible – may be appropriate to consider assessment for application under the MHA 1983. If no mental disorder – the care plan will need to be modified to avoid a deprivation of liberty A valid refusal exists – alternative care arrangements will need to be made – if refusal questionable then Court of Protection decision may be sought If under 18 – consider use of the Children’s Act 1989

RESOURCES Department of Health website www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm for draft forms, information leaflet, regulations and www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_089772 Public Guardian www.publicguardian.gov.uk Tel: 0845 330 2900 Email: customerservices@publicguardian.gsi.gov.uk DOLS Mental Health Management Team, 1st Floor Warwick House, Ratcliffe Street, Atherstone, Warwickshire CV9 1JP Phone : 01926 413 914 Fax: 01926 413950