THE DEPRIVATION OF LIBERTY SAFEGUARDS Amendments to the Mental Capacity Act 2005

Deprivation of Liberty and the Mental Capacity Act The Deprivation of Liberty safeguards are part of the Mental Capacity Act They amend the Mental Capacity Act however… Care and treatment must still adhere to the Mental Capacity Act The Safeguards provide legal authority but only to detain the individual subject to certain strict criteria

Deprivation of Liberty Safeguards – care for those without capacity Will affect 1.those lacking capacity to give informed consent to their care + 2. Where the nature of the care could be depriving them of their liberty + 3. Must be over 18 4. Cared for in a hospital or care home (Care Standards Act)

Deprivation of Liberty Safeguards Deprivation of liberty must be authorised via a legal procedure Assessment must establish eligibility criteria and best interest proportionate + no other viable alternative – 6 areas of assessment Assessor can attach conditions to the authorisation including time period of authorisation Maximum period of authorisation is 12mths Person has right of appeal and a representative appointed

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)) – Bournewood Trust were found to have exercised complete and effective control. “The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance” Therefore no definition A serious matter to be used sparingly and avoided wherever possible

What is Deprivation of Liberty (cont) Draft Code of Practice refers to a need to consider the combined impact of all restrictions – degree and intensity rather than nature or substance The person is not or would not be allowed to leave the facility no or little choice about their life within the care home or hospital Prevented from maintaining contact with the outside world Restraint may indicate the persons wishes being over ridden and need to consider if liberty is being deprived

A) 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 7 days while obtaining authorisation B) Assessment commissioned by supervisory body. IMCA appointed for unbefriended Age assessment No Refusals assessment Mental health assessment Eligibility assessment Mental capacity assessment Best interest assessment Authorisation expires and Managing authority requests further authorisation All assessments support authorisation Any assessment says no E) Best interest assessor recommends person to be appointed as representative C) Request for authorisation declined D) Best interest assessor recommends period Person or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditions F) Authorisation is granted and persons representative appointed G) Authorisation implemented by managing authority Managing authority requests review because circumstances change Person or their representative requests review H) Review

Responsibilities in Deprivation of Liberty Assessors Carry out assessments Managing Authority Hospital or Care Home Responsible for care and requesting an assessment of deprivation of liberty Relevant Person Person being deprived of liberty Representative Providing independent support Family/Friends/Carers Consulted, involved and provided with all information Supervisory Body PCT or LA Responsible for assessing the need for and authorising deprivation of liberty IMCA Court of Protection

Age Assessment To establish if the relevant person is 18 or over Anyone deemed to be appropriate

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

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

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

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

Best Interests Assessment Purpose – to establish firstly whether DoL is occurring or is going to occur and if so whether it is in their best interests, it necessary to prevent harm to themselves and the DoL is proportionate to the likelihood and seriousness of the harm AMHP; Social Worker, Nurse, Occupational Therapist, Psychologist: With skills and experience required by the regulations Has the required skills for the role Has completed specific DoL Best Interests Assessor training Suitability considering the circumstances of the case

Advocacy and deprivation of liberty IMCA – is appointed where the person being assessed has no family or friends to consult with. IMCA – Where family/friends are available and an IMCA is not instructed at point of assessment, where the appointed representative is an unpaid person, they may refer to an IMCA – issue specific

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

Summary responsibilities – Supervisory Bodies Receive application for Deprivation of Liberty Ensure communication between bodies Determine if request is appropriate - assess Appoint to the roles - assessors and IMCA Obtain written assessments to ensure relevant criteria are met Grant authorisation for specific period or decline based on the assessment outcomes Attach conditions where appropriate Communicate decision and support alternative care planning where relevant Appoint representative Inform in writing relevant parties of authorisation & appeals procedure Review Deprivation of Liberty authorisation End the authorisation Governance of duty

Summary responsibilities – Managing Authorities Identify and minimise Deprivation of Liberty Determine if application for DoL is required in advance Grant urgent authorisation where required Submit application for DoL Ensure communication between relevant bodies Support assessment – access to information, consideration of appropriate representative Provide alternative care where authorisation is not granted Comply with any conditions attached to authorisation Monitor and review DoL authorisation including the representatives invovlement End deprivation of liberty Inform relevant parties of authorisation & appeals procedure Review Deprivation of Liberty authorisation End the authorisation Governance/recording

Further information Sylvia.manson@eastmidlands.csip.nhs.uk www.eastmidlands.csip.nhs.uk www.justice.gov.uk www.dh.gov.uk