Deprivation of Liberty Safeguards (DOLS) Presented by Christine Hewitt

Aims and Objectives 1.  Understand what 'deprivation of liberty' means and how it relates to the Mental Capacity Act   2.  Understand the key aspects of decision making surrounding DOLS as an alternative to an application under the Mental Health Act. 3.  Be able to identify service users/ residents/patients who are at risk of being deprived of their liberty  4. Be able to develop practices, procedures and care plans in order to avoid unnecessary deprivations of liberty  5. Know how to obtain formal authorisation for a resident/patient to be deprived of their liberty where this is believed to be in their best interests  6. Understand what action to take if they think a patient/resident may be being deprived of their liberty unlawfully (i.e. no authorisation exists)

Ice Breaker Chat to the person sitting next to you for three or four minutes about a time when you were deprived of your liberty. Be prepared to share your thoughts with the main group A

Bournewood Timeline 1994 - Harry resettled to an adult placement scheme October 97 – Habeas Corpus application (High Court) December 1997 - Court of Appeal June 1998 - House of Lords February 2002 – 10 minute Rule Bill March 2002 – Health Ombudsman Report September 2002 – ECHR application October 2004 – ECHR decision ruled Art 5 breached December 2004 – D o H Interim Guidance March 2005 – July 2005 Bournewood Consultation January 2006 – Apology to George & Mary from the former Bournewood Trust April & November 2007 – Mental Capacity Act implemented July 2007 – Mental Health Act 2007 Royal Assent April 2009 – Bournewood Safeguards Operational?

Two Acts and Three Codes

Statutory Principles – Section 1 5 A presumption of capacity The right for individuals to be supported to make their own decisions The right to make what might be seen as eccentric or unwise decisions Be least restrictive of their basic rights and freedoms Best interests

The Best Interests Checklist Section 4 Act doesn’t define best interests but does give a checklist… must involve the person who appears to lack capacity have regard for past and present wishes and feelings consult with others who are involved in the care of the person there can be no discrimination

This 2-stage test must be used and records must show it has been used! The Diagnostic Test or Two Stage Test of Capacity (Code of Practice 4.10 – 4.13) 1. “Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? If so… 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision? “ This 2-stage test must be used and records must show it has been used!

The Functional Test A person is deemed unable to make a decision if s/he is unable … to understand the information relevant to the decision, retain that information long enough to enable the making of a decision use or weigh that information as part of the process of making the decision communicate the decision by any means.

Acts in Connection with Care or Treatment - Section 5 Previous legal principle: no-one can interfere with another adult’s body or property unless the adult consents The Act provides a defence against liability for people who need to do things to someone who lacks capacity to consent so long as they are acting in the person’s best interests. The clause enables carers or professionals to lawfully help persons who cannot consent It sets boundaries for when and how they can act

Restraint – Falling Short of Deprivation of Liberty (Section 6) The use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm.

Types of Restraint Physical – e.g. chair belts, cot sides, bucket chairs Physical intervention – e.g. arm’s length observation, being held in a chair or bed Chemical restraint – e.g. drugs especially prn Environmental restraint – e.g. locked sections of a building, baffle locks, electronic key pads Electronic surveillance – e.g. electronic tagging, exit alarms, CCTV Medical restraint – e.g. catheters or feeding tubes Source - Rights, Risks and Restraints – CSCI November 2007

Detailed and Complex “The amendments to the Mental Capacity Act are detailed and complex and we question whether they will be readily understood by proprietors of residential care homes, even with the benefit of professional advice” European Joint Committee on Human Rights

Christine’s Challenge! When it was passed in 2005, the Mental Capacity Act was comprehensible to a reasonably informed lay person who was required to make decisions on behalf of a mentally incapacitated individual. The fact that key elements of the Act have been rendered largely incomprehensible to both lay people and to many professionals represents a significant failure on the part of both Government and Parliament. Richard Jones, Mental Capacity Act Manual (3rd Edition)

Summary The deprivation of liberty safeguards mean that a hospital or care home (a ‘managing authority’) must seek authorisation from a Primary Care Trust (PCT) or a Local Authority (‘a supervisory body’) in order to be able to deprive someone who has a mental disorder, and who lacks capacity to consent, of their liberty.

The Safeguards Also Cover… how an application for authorisation should be assessed the criteria determining when an authorisation should be granted how any authorisation to deprive someone of their liberty must be reviewed under what circumstances an authorisation can be renewed what support and representation must be provided for people who are subject to an authorisation, and how people can challenge authorisations

Safeguards Apply… Aged 18 and over Suffer from mental disorder Lack the capacity to give informed consent to the arrangements made for their care AND for whom deprivation of liberty is considered after an independent assessment to be necessary in their best interests to protect them from harm. Apply to both public and private placements Will not be able to be used as an alternative to the Mental Health Act where patient is thought to object Only applies in hospitals and care homes

When Can Someone be Deprived of Their Liberty? The deprivation of liberty safeguards make it clear that a person may only be deprived of their liberty: if they lack capacity to consent to the arrangements for their care and if this is in their own best interests, and when it is not possible to care for them in a less restrictive way.

In Practice - Two Simple Questions… For every person living in a hospital or care home who lacks capacity, you should think about the following questions: 1. Does the care and/or treatment being provided take away the person’s freedom to do what they want to do to the extent that they are being deprived of their liberty? 2. Do you believe that the care and/or treatment is in the person’s best interests?

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

Continuum of Liberty Restriction of Liberty Deprivation Total

The Six Statutory Assessments Purpose Who can do it Age Are they over 18? Anyone No Refusals Is there an Advance Decision, Lasting Power of Attorney or Court Appointed Deputy? Best Interest Assessor Mental Capacity Does the person lack capacity? Mental Health Assessor or Best Interest Assessor Mental Health Does the person have a mental illness? Eligibility Is the person covered by the Mental Health Act or requires Mental Capacity Act Deprivation of Liberty Safeguards? Mental Health Assessor or Best Interest Assessor Best Interests Assessment Is it in the person’s best interests, necessary and proportionate

Indicators of Deprivation of Liberty from Case Law restraint was used to admit a person to a hospital or care home when the person is resisting admission medication was given forcibly, against a patient’s will staff exercised complete control over the care and movements of a person for a long period of time staff took all decisions on a person’s behalf, including choices relating to assessments, treatments, visitors and where they can live hospital or care home staff took responsibility for deciding if a person can be released into the care of others or allowed to live elsewhere when family carers requested that a person be discharged to their care, hospital or care home staff refused the person was prevented from seeing friends or family because the hospital or care home has restricted access to them the person was unable to make choices about what they wanted to do and how they wanted to live, because hospital or care home staff exercised continuous supervision and control over them.

Indicators of Deprivation of Liberty Force used to convey to hospital or to prevent purposeful attempt to leave Opposition by carers / relatives to admission or denial of request for discharge Force used to treat Denial of access to the patient or severe restrictions of autonomy Access to community denied for public safety DoLS Addendum

Indicators of No Deprivation of Liberty Benign force to admit confused patient or to prevent leaving Locked ward (baffle handles, keypads etc) Bringing back wandering patient Benign force to treat, feed, dress etc. Restraint in response to disturbed behaviour Reasonable limitations on visits Community access restricted for own safety A

Standard Authorisations Managing authorities should apply for a standard authorisation before a deprivation of liberty occurs – for example, when a new care plan is agreed that would mean depriving a person of their liberty. All assessments must be completed within 21 days from the date that the supervisory body receives a request from a managing authority Lasts for up to 12 months 26

Urgent Authorisations May be granted by the managing authority Last up to 7 days May be extended in exceptional circumstances for another 7 days Should only be given after consideration of all the persons circumstances Stops if SB rejects standard assessment Lasts for up to 7 days

Relevant Person’s Representative The RPR is usually a family member or someone known to the person deprived of liberty. If the person has no family member, friend or carer, the supervisory body has to appoint a representative, who can be paid as appropriate. Role: maintain contact with person, represent and support re deprivation of liberty safeguards, if appropriate trigger review or application to Court of Protection Must be 18 or over, willing to be appointed, able to keep in contact and have no fiduciary interests

When an IMCA is Required IMCA appointed at start of authorisation process where there are no friends or family to consult IMCAs have additional rights under DoLS (s3.23) IMCA role ends when person’s representative is appointed Where person’s representative is a non paid person they have their own right to an IMCA

What is Happening??? DoH assumed 21,000 people would be assessed in the first year and a quarter of those would go on to be brought within the safeguards Nationally 300 LAs & PCTs charged with implementing the safeguards In the first 4 months, two thirds of them say they have had fewer than 5 DOLS and a quarter say they have had none at all! However, one council reported 105 DOLS in April & May alone

Monitoring the Safeguards Commission for Social Care Inspection + Healthcare Commission + Mental Health Act Commission = Care Quality Commission The Care Quality Commission (CQC) will monitor MCA DOLS operations. The CQC will have the power to visit hospitals and care homes and interview the people involved in each case. They will also be able to access and view all relevant records to ensure that people are being adequately protected.

Appeals Appeals are to the Court of Protection Can be made by the person, their representative or an IMCA Areas for appeal include: Whether they meet the criteria for detention Period of authorisation Purpose of authorisation Conditions of authorisation The Court of Appeal may: Vary or terminate urgent authorisation Direct the supervisory body or managing body to vary or terminate the authorisation

Court of Protection A Supreme Court Own Judges and Visitors Regional Centres Provides a forum for solving problems related to the Mental Capacity Act in general The following people have an automatic right of access to the Court of Protection once an urgent or standard authorisation has been granted… • the person deprived of their liberty • their representative • the donee of a relevant lasting power of attorney • a deputy appointed by the Court of Protection to act for the person concerned.

Remember Deprivation of Liberty is a serious matter to be used sparingly and avoided wherever possible!

The End Any more questions, queries or final comments? That’s all for now folks Have a safe journey home Christine Hewitt Mental Health Training Net Website www.mentalhealthtraining.net Tel. 01924 266111 or 07931 353082 E Mail christine@mentalhealthtraining.net