Deprivation of Liberty Safeguards Dr Sunita Sahu Consultant Old Age Psychiatrist Memorial Hospital Greenwich

Outline ECHR caselaw Mental Capacity Act 2005 Bournewood case DoLS Code of Practice Cases

Common Law Doctrine of Necessity Developed through case law Based on ‘implied consent’ Patient Safeguards Same ‘rights’ as voluntary patients. ‘ the ability to leave, to show dissent and the probity of the staff.’

European Convention on Human Rights Article 5 :Right to security and liberty 1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following circumstances and in accordance with a procedure prescribed by law: …. (e) the lawful detention … of persons of unsound mind … …. 4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Deprivation of liberty safeguards

Key Principles of the MCA 2005 Assume a person has capacity all steps to help them make the decision Not treat someone as incapable because decision seems unwise Achieve the outcome in the least restrictive way decision made must be in their best interests

The Bournewood Case Autistic man with severe LD Informally admitted to Bournewood hospital under common law. Under complete and effective control of staff hence deprived of his liberty Without a legal procedure with safeguards and speedy access to a court of appeal

The Bournewood case Detention under common law incompatible with article 5 of the HRA- too arbitrary and lacked sufficient safeguards such as those provided by the MHA 1983 The MCA 2005 did not cover these specific circumstances -the “Bournewood Gap”

Restraint Is use or threatened use of force and any restriction in the person’s liberty of movement. Disallowed unless the following apply –Harm if treatment/ intervention not applied –Proportionate to the likelihood and seriousness of that harm –Least restrictive option

However Protection from liability does not extend to deprivation of liberty “Restriction” as opposed to “Deprivation” is a matter of degree or intensity

DoLS DolS to provide a legal framework around the deprivation of liberty. Specifically, to prevent breaches of the European Convention on Human Rights

Definition No simple definition Ultimately a legal question determined by the Courts hence may change

Who does it apply to ? Aged 18 and over Suffers from a mental disorder or disability of the mind – dementia or profound LD Lacks capacity to consent to treatment/care in hospital/care home Care/treatment, in their own best interests Can only be provided in circumstances that amount to a dol Mental Health Act 1983 not appropriate

Aim of DoLS Protect an extremely vulnerable group Care in the least restrictive way Prevent arbitrary decisions Provide safeguards Provide them with rights of challenge against unlawful detention

Relation between MCA and DoLS Both the MCA and the main Code have to be adhered to whenever capacity and best interests issues, and dols, are being considered. The dols are in addition to, and do not replace, other safeguards in the Act.

How will the processes work? Two new ‘legal’ entities 1.Managing authorities – who provide care, and who must request authorisation- hospitals/care homes 2.Supervisory bodies – who must organise assessments and issue authorisations- PCT/LSSA

Process of Authorisation Managing authority required to have monitoring system to identify potential dols. Request for authorisation must include certain information. Should inform family, friends, carers, IMCA, other interested persons unless impractical or undesirable to do so

start Managing authority becomes aware that the care someone needs amounts to a deprivation of their liberty. Authorisation requested before deprivation begins Supervisory body appoints assessors to complete assessment Assessors decide whether or not to recommend authorisation can be authorised for up to 12 months (max) If authorisation recommended, consider any conditions and appoint a representative

Time limits Standard assessments must be requested before start of care, and must be completed within 21 days Emergency authorisations may last for up to 7 days and can be issued by the Managing Authority if the dol needs to start immediately. Assessments should be completed within 7 days (14 days in exceptional circumstances)

DoLS Assessments 1.Age assessment- person is 18 or older. 2. No refusals assessment DoL authorisation would not conflict with (i) valid & applicable AD to refuse treatment, or (ii) valid decision of donee (LPA) or deputy of Ct of Protection.

DoLS Assessments (iii) Mental Capacity Assessment To establish whether P has mental capacity to make decision re accommodation. (iv) Mental Health Assessment To establish presence of mental disorder according to MHA

DoLS Assessments (v) Eligibility assessment Not eligible for deprivation of liberty authorisation if: detained under the MHA 1983, or authorisation, if given, would be inconsistent with an obligation under MHA (vi)Best Interests Assessment in best interests necessary to to prevent harm DoL - proportionate to likelihood & seriousness of that harm.

Assessments AgeTo be signed off by another assessor No refusalsTo be signed off by another assessor Mental HealthMust be Dr - specialist / s12 Mental CapacityMH/BI assessors EligibilityMust be S12 doctor/ AMHP Best InterestAMHP/SW/Nurse/OT/Psy

Rules re: assessors Mental Health and Best Interests assessor MUST be different people Both must have specialist DoLS training There must be at least 2 assessors The doctor may know or work with the patient, the Best Interests assessor MUST NOT work with or be involved in the care of person who is being assessed Except for age assessor, must be covered by liability insurance

Deprivation of liberty safeguards Post Assessment Procedure If all requirements met by the results of assessments, then supervisory body must give authorisation, in writing. Authorisation for period no longer than that set by B.I. assessor (max 12 months) Supervisory body may set conditions to authorisation eg contact, and must appoint a representative for P.

Deprivation of liberty safeguards Post Assessment Procedure If one or more requirements not met, supervisory body must inform managing authority, P, other interested parties. If eligibility requirement not met, consider use of MHAct If authorisation not granted, subsequent actions by managing authority will depend on outcome of assessments.

Deprivation of liberty safeguards Review and Termination Can be reviewed at any time by supervisory body. Statutory grounds for review eg no longer meet requirements. Can be ended by managing authority when no longer necessary and supervisory body informed to carry out review. Reviews follow standard authorisation procedures.

Deprivation of liberty safeguards Appeals and Monitoring Court of Protection is Article 5(4) court to review lawfulness of deprivation of liberty. Person or their representative has right of application Legal aid available. New regulator to be formed: Care Quality Commission (Eng)

Perisisting Human Rights Concerns Essential detail re DoL only in Code. Is this a ‘procedure prescribed by law’? Complexity of framework may breach Article 5, ECHR – ‘not sufficiently precise to allow the citizen to foresee (consequences) to a degree that is reasonable in the circumstances..’ Authorisation does not contain power to convey P to place where deprivation of liberty will apply, Is no mechanism by which P’s case must be referred to Court of Protection

Determining whether a DoL may be occurring All the circumstances of each and every case Measures being taken in relation to the individual? When are they required? For what period of time?

What are the effects of any restraints or restrictions on the individual? Why are they necessary? What aim do they seek to meet? How are they implemented?

Views of the person, their family or carers? Any objections to the measures? Any of the constraints beyond ‘restraint’ or ‘restriction’ to the extent of dol? Cumulative effect of all the restrictions Any less restrictive options ?

Taking steps to reduce risk of a DoL occurring Minimise the restrictions imposed Take decisions with the involvement of the relevant person and their family, friends and carers. Help the person retain contact with their family, friends and carers Encourage local advocacy services involvement to support the person and their family, friends and carers.

Cases where the courts found no Dol - LLBC v TG (2007) TG 78-year-old man with dementia, resident in a care home, but admitted to hospital Dispute between the local authority and TG’s daughter and granddaughter about TG’s future. The council obtained an order from the court, directing TG be delivered to care home identified by the council Subsequently changed and TG was able to live with his daughter and granddaughter. TG’ s daughter and granddaughter claimed that the period of time he had spent at the care home amounted to a dol. The judge considered that there was no dol

Key factors in the decision The care home was an ordinary care home where only ordinary restrictions of liberty applied. The family were able to visit TG and were entitled to take him out. TG was compliant and happy in the care home. He had lived in a local authority care home for over three years. There was no occasion where TG was deprived of his liberty.

HM v Switzerland (ECtHR; (2002) 84-year-old woman placed indefinitely in a nursing home by state authorities. Could have stayed at home, but she and her son had refused to co-operate with the care and her living conditions had subsequently deteriorated. Placed in the home in order to provide her with medical care and satisfactory living conditions

The woman was free to move within the home and to have social contacts with the outside world. Undecided initially, but after moving into the home, the applicant had agreed to stay there. However, then applied to the courts saying that she had been deprived of her liberty.

The Court held that she had not been deprived of her liberty: placement had been in her own interests was a responsible measure taken by the authorities

Case that did involve a deprivation of liberty DE and JE v Surrey County Council (2006

DE 76-year-old man had a stroke, became blind and had significant short-term memory impairment, 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 2003, DE was living at home with JE.

Once, when JE felt that she could not care for DE, she placed him on a chair on the pavement in front of the house and called the police. The local authority then placed him in two care homes, the X home and the Y home. In the homes, DE had a very substantial degree of freedom and lots of contact with the outside world. He was never subject to physical or chemical restraint.

DE repeatedly expressed the wish to live with JE, and JE also wanted this. SCC would not agree to DE returning to live with, or visit, JE If JE were to persist in an attempt to remove DE, SCC would contact the police. DE and JE applied to the courts that this was a deprivation of his liberty

Decision of the Court DE was not and is not “free to leave”, and was and is, in that sense, completely under the control of the local authority DE will be permitted to leave the institution to go home with JE only when the local authority considers it appropriate. The local authority has been and is continuing to deprive DE of his liberty