1. John Taylor Hospice Mental Capacity Act Skills Study Session Session 2 of 2: The Deprivation of Liberty Safeguards Mental Capacity Act Project Team

2. 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

3. 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?

4. What is liberty? A human right Free will 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 does it mean for you?

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

6. 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 Look at the different purposes of deprivation of liberty under different legislation above

7. History of the Deprivation of Liberty Safeguards (DoLS) 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’

8. 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 HL v UK - the Bournewood Gap https://youtu.be/pz5Ecovjs4w

9. 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 HL v UK - the Bournewood Gap The Deprivation of Liberty Safeguards apply in Hospitals and Care Homes registered under the Care Standards Act (2000)

10. What is a deprivation of liberty? There must be the following three elements for a deprivation of liberty to be occurring: 1.An objective element of confinement in a particular restricted space for a not negligible length of time, 2.A subjective element of a lack of consent, 3.Immutable to the state.

11. What is a deprivation of liberty? There must be the following three elements for a deprivation of liberty to be occurring: 3.Immutable to the state – 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 – this is a given in a hospice or hospital setting

12. What is a deprivation of liberty? There must be the following three elements for a deprivation of liberty to be occurring: 1.An objective element of confinement in a particular restricted space for a not negligible length of time – whether the patient meets the ‘Acid Test’ Not negligible length of time – the proverbial piece of string – In ZH and autistic gentleman was restrained by Police for 15 minutes, then cuffed (inc. leg restraints) and placed in the cage in the back of a Police van for a further 25 minutes was geld to be deprived of his liberty (and unlawfully) – the court drew comparisons between ZH’s treatment and being detained in a prison cell – the Police exercised complete and effective control over ZH for the whole period Interesting (but very detailed) paper that does discuss ‘not negligible length of time’ in some detail: http://www.39essex.com/docs/articles/deprivation_of_liberty_in_the_hospital_settingv3.p df

13. 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) The ‘Acid Test’ 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.”

14. 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 And are 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. The ‘Acid Test’ 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

15. What is a deprivation of liberty? There must be the following three elements for a deprivation of liberty to be occurring: 2.A subjective element of a lack of consent – Under the Mental Capacity Act this is because the person lacks capacity in relation to the care, treatment and / or accommodation that deprives them of their liberty and therefore cannot give informed consent There is therefore an opportunity in hospice settings to plan ahead and avoid a deprivation of liberty, if the patient can consent to the care, treatment and / or accommodation that would otherwise deprive them of their liberty (if that is predictable) as the subjective element wouldn’t be met

16. Advance care planning If the proposed treatment (that might otherwise deprive the person of their liberty) is explained and discussed with the patient prior to their admission, and the person has capacity to give and does give their informed consent, then the subjective element will not be met and the person wouldn't be consider to be deprived of their liberty. This would need to be kept under review, i.e. if there any changes to the material situation and the person hasn’t given valid consent this may then give rise to a deprivation of liberty. If the person lacks capacity to consent to the treatment at point of admission, consideration has to be given to whether they met the acid test and would therefore be considered to be being deprived of their liberty. Law Society Guide to Identifying a Deprivation of Liberty (excellent resource that specifically looks at issues in the hospice setting): http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/

17. Advance care planning Often patients are admitted to hospices for short lengths of time. Hospices don’t usually admit patients who are resisting admission or prevent them from returning home. “Factors that are likely to be taken into account when considering whether a deprivation of liberty is taking place include: That the circumstances are no longer covered by a consent given on admission; Administering sedatives to decrease anxiety and agitation; Chemical restraint; Constant supervision in case of terminal agitation; and Restricting movement of patients who are mobile, so that they are not free to leave the hospice grounds because they may be a danger to themselves” Source: Law Society Guide to Identifying a Deprivation of Liberty: http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/

18. Break

19. Deprivation of Liberty Deprivation of liberty 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 homesCommunity 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) 6 assessments carried out by Best Interests Assessor and Mental Health Section 12 Doctor Authorised by application to the Court of Protection Standard Authorisation granted if person meets qualifying criteria Court or Personal Welfare order granted if the person lacks capacity and the deprivation is in their best interests 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 Court order details review process 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.”

20. Deprivation of Liberty Deprivation of liberty Hospitals and care homes types of Authorisation Deprivation of liberty unlawful unless authorised by a process in law Urgent AuthorisationStandard Authorisation It is unlawful for a person to be deprived of their liberty without authorisation, therefore if the Managing Authority (the hospital or care home) believes they are currently depriving the person of their liberty, in their best interests, it gives itself that lawful authority by granting itself an Urgent Authorisation If a Standard Authorisation is requested without an Urgent Authorisation (because the person is not currently being deprived of their liberty, but is identified through care planning, as being at risk of deprivation in the very near future) the Supervisory Body has 21 calendar days within which to complete it’s assessment and decide whether to grant or not grant a Standard Authorisation Managing Authority gives itself the lawful authority to deprive the person of their liberty for calendar days (which can be extended up to 14 days) A Standard Authorisation is granted by the Supervisory Body (Dept. within Local Authority), after it has carried out its assessment(s) and if person meets the 6 qualifying criteria At the same time the Managing Authority requests a Standard Authorisation – the Supervisory Body (Dept. within Local Authority) will asses and grant a Standard Authorisation if the person meeting the 6 qualifying criteria (within the period of and before the Urgent Authorisation expires) Standard Authorisations can be granted for up to, but no longer than 12 months. Conditions can be attached (which can reduce the impact of an authorisation or work towards it’s end) For a Standard Authorisation to be granted: The patient must be being deprived of their liberty They must have been assessed to lack mental capacity to make a decision about the care, treatment and / or accommodation that deprives them of their liberty The deprivation must be found to be in their best interests, the arrangements must be a proportionate response to the likelihood of harm and the seriousness of that harm The patient has met all of the 6 qualifying criteria for the Deprivation of Liberty Safeguards.

21. The Deprivation of Liberty Safeguards (DoLS) Deprivation of liberty Safeguards eligibility criteria Assessment Age assessment This is to confirm whether the person is over 18 years old, DoLS applies to people aged 18+ No Refusals Assessment This is to see whether depriving the person of their liberty would conflict with other decision making authority, such as an advance decision to refuse treatment or someone who holds a Lasting Power of Attorney or a Court Appointed Deputy. Mental Capacity Assessment This is to see whether the person lacks the mental capacity to decide whether or not they should live or be accommodated in the care home or hospital for care and / or treatment. Mental health assessment This is to establish whether the person is suffering from a mental disorder under the definition of the Mental Health Act 1983. Eligibility Assessment This is to see whether depriving the person of their liberty would conflict with any part of the Mental Health Act 1983. Best interests assessment the purpose of this assessment is firstly to see whether they are, or will be being deprived of their liberty and if they are being deprived of their liberty whether it is in their best interests. A Standard Authorisation for deprivation of liberty authorises the deprivation for the purpose of providing care and / or treatment, it does not itself necessarily authorise providing care and / or treatment against the wishes of a person who lacks capacity. Serious treatment decisions that are carried out against the wishes of the person who lacks capacity may need to be decided by the Court of Protection.

22. The possible outcomes following the assessment process: 1.Standard Authorisation will be granted: the patient is being deprived of their liberty and they have met all the qualifying criteria, the assessments confirm that they lack mental capacity to consent to those arrangements and the deprivation of their liberty is in their best interests. This means that there is no other way to care for, treat or accommodate the patient without depriving them of their liberty. 2.Standard Authorisation will not be granted: the patient is being deprived of their liberty, but it is not in their best interests – this might be because there is an alternative that could prevent them from coming to harm that doesn’t deprive them of their liberty. The Supervisory Body will ask the Managing Authority to change what they are doing so the patient is no longer being deprived of their liberty. 3.Standard Authorisation is not needed: the patient is not being deprived of their liberty. 4.Standard Authorisation will not be granted: the patient is found to have capacity; therefore they have the right to decide upon their care, treatment and / or accommodation. 5.Standard Authorisation will not be granted: the patient does not meet the other qualifying criteria (the age, no refusals, eligibility and / or mental health assessments) then their care, treatment or accommodation may need to be reviewed or another process for authorising the deprivation of liberty may be required, i.e. by making an application to the Court of Protection. The Deprivation of Liberty Safeguards (DoLS) Potential outcomes of the assessment process:

23. An important note: A Standard Authorisation for Deprivation of Liberty does not authorise compulsory treatment (for either treatment for a physical illness or a mental disorder) only the admission to the place where treatment is being given therefore if treatment may need to be given against the wishes of a patient an application to the Court of Protection may be required.

24. Case study:

25. Questions?

26. Visit our Web Resource page for useful Mental Capacity Act resources, information and best practice tools: http://bhamsouthcentralccg.nhs.uk/2012-02-08-14-59- 22/mental-capacity-act Law Society Guide to identifying a deprivation of liberty (Chapter 4): http://www.lawsociety.org.uk/support- services/advice/articles/deprivation-of-liberty/ The Deprivation of Liberty Safeguards Code of Practice: http://webarchive.nationalarchives.gov.uk/20130107105 354/http:/www.dh.gov.uk/en/Publicationsandstatistics/Pu blications/PublicationsPolicyAndGuidance/DH_085476