1. Health and Social Care Deprivation of Liberty Safeguards

2. Aims and Objectives  This session will recap on the legislation and background to the implementation of the Deprivation of Liberty safeguards  You will learn about the assessment process and key terminology  You will demonstrate your understanding in an end of session assessment

3. Introduction  The Deprivation of Liberty Safeguards were introduced to:  Prevent random decisions depriving vulnerable people of their liberty and for their protection  The safeguards ensure that service users who need to be deprived of their liberty:  Have representatives and rights of appeal  With regular review and monitoring

4. Introduction  The safeguards cover people in hospital and care homes registered under the Care Standards Act 2000  Whether placed publicly or privately

5. Deprivation of Liberty Legislation  The legislation is part of the Mental Capacity Act 2005 and amends the Act to meet the ‘Bournewood Gap’  The safeguards were introduced into the Act through the Mental Health Act 2007  Mental Capacity Act 2005 Amended by the Mental Health Act 2007 Also amending the Mental Health Act 1983 DoLS Regulations came into force April 1st 2009

6. The Bournewood Case  The safeguards arise 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

7. The Safeguards  A legal procedure to enable lawful detention of a person who is: 1.Over 18, and 2.Lacking capacity to consent to the arrangements for their car, and 3.Receiving care where levels of restriction and restraint are so high that they are being deprived of their liberty, and 4.Within a hospital or care home, and 5.Where detention is not already authorised under the Mental Health Act

8. The Relationship of DoLS to MCA  Any action taken under the deprivation of liberty safeguards must be in line with the principles of the Act:  Assume capacity unless it is established that a person lacks capacity  A person is not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success  A person is not to be treated as unable to make a decision merely because he makes an unwise decision

9. The Relationship of DoLS to MCA (continued)  Any action taken under the deprivation of liberty safeguards must be in line with the principles of the Act:  An act done (or decision made) under the Act (or on behalf of a person who lacks capacity) must be done (or made) in his best interests  Before the act is done (or the decision is made) regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

10. What Does This Mean?  Any care or treatment (given to a person without mental capacity to give consent) that restricts liberty to the point of deprivation is a breach of human rights  Unless a DoLS authorisation has been made

11. Assessments The Assessment Process

12. DoLS – The Assessment Process  Once it has been determined that a referral for authorisation of Dols is needed there is a formal process to follow  Where the need is immediate an urgent authorisation can be made Urgent authorisations should normally only be used in response to sudden unforeseen needs

13. DoLS – The Assessment Process  The assessments have to ensure that all requirements are met  The regulations stipulate who does these assessments  Six assessments: 1.Age 2.Mental health 3.Mental capacity 4.No refusals 5.Eligibility 6.Best interests

14. Key Terminology  Relevant Person (RA)  The person being deprived of their liberty  Managing Authority (MA)  Hospital or Care Home – the care provider responsible for requesting an assessment of deprivation of liberty

15. Key Terminology  Supervisory Body (SB)  The Primary Care Trust (PCT) or Local Authority (LA) responsible for assessing the need for and authorising deprivation of liberty  Assessor  Carries out assessments as per the regulations

16. Key Terminology  Representative (RPR)  Provides independent support to the RP  Independent Mental Capacity Advocate (IMCA)  Represents RP being referred for authorisation  Represents RP where a best interests assessor is assessing possible unlawful deprivation of liberty  May stand in (no ‘representative’)  May support the RP and/or their representative when instructed by the SB or at the request of RP or their representative

17. Key Terminology  Court of Protection  Where deprivation of liberty safeguards and procedures will be challenged  Where arguments about public protection and best interests can be resolved

18. Action to be Taken by the Managing Authority (MA) 1.The hospital or care home manager identifies the person at risk of deprivation of liberty 2.They then request authorisation from the supervisory body (SB)

19. Action to be Taken by the Supervisory Body (SB)  An assessment is commissioned by the supervisory body  An IMCA is instructed for anyone without a representative

20. The Six Stage Assessment 1.Age assessment (is the person 18+) 2.Mental health assessment 3.Mental capacity assessment 4.Best interests assessment 5.Eligibility assessment 6.No Refusals assessment

21. The Assessment  If any of the assessments undertaken do not meet the criteria for authorisation the request for authorisation is refused  All assessments support authorisation: 1.Best interests assessor recommends period for which deprivation of liberty should be authorised and person to be appointed as representative 2.Authorisation is granted and persons representative appointed (RPR or IMCA) 3.Authorisation implemented by managing authority (MA)

22. The Best Interest Assessor  An independent public body in their own right and responsibility  Their assessment can only be overruled by the Court Of Protection  Can also give a Standard Authorisation with conditions attached

23. Authorisation Expiry  Authorisation expires and Managing Authority (MA) requests further authorisation  Same process starts again

24. Emergencies  The Managing Authority (MA) can issue an urgent authorisation for seven days  While simultaneously obtaining authorisation (where it believes the need is immediate)  This procedure should normally only be used in response to sudden unforeseen needs but also may be used in care planning  E.g. to avoid delays in transfer for rehabilitation where delay would reduce the likely benefit of rehabilitation  The period of time must not exceed 7 days (only the Supervisory Body can extend to 14 in exceptional circumstances)

25. Reviews and Appeals  The RP or the RPR/IMCA can request a review at any time  The MA can request a review if circumstances change  The person or their representative can also appeal to Court of Protection  Which has powers to terminate authorisation or vary conditions

26. Assessments In More Detail

27. Assessments – Mental Capacity  To establish whether the RP lacks capacity to consent to the arrangements proposed for their care or treatment  This is assessed by a person eligible to act as a Mental Health Assessor or Best Interests Assessor

28. Assessments – No Refusal  To establish whether an authorisation for DoL would conflict with any other existing authority for decision making for the RP  This is undertaken by Best Interest Assessor

29. Assessments – Eligibility  To establish whether the RP is subject to the Mental Health Act 1983 or whether they should be covered by the Mental Health Act 1983 instead of a DoL authorisation  This is undertaken by a Best Interests Assessor who is also an Approved Mental Health Practitioner or a Section 12 Approved Mental Health Assessor

30. Assessments – Mental Health  To establish if the RP is suffering from a mental disorder within the meaning of the Mental Health Act 1983 (but excluding additional criteria for learning difficulty)  This is undertaken by a Doctor who is Section 12 Approved ( Mental Health Act 1983 ) or a registered medical practitioner with 3 years special experience in the diagnosis and treatment of mental disorders (and have completed approved training)

31. Assessments – Best Interests  To firstly establish whether DoL is occurring (or is going to occur) and if so whether it is: In the RP’s best interests Necessary to prevent harm to themselves and that the DoL is proportionate to the likelihood and seriousness of the harm

32. Assessments – Best Interests  To evaluate the care plan:  To consider less restrictive alternatives against likelihood of harm  To seek the views of anyone involved or interested in the persons welfare  To involve the RP and support them to take part in the decision  To consider views of the mental health assessor

33. Assessments – Best Interests  To decide if it is in the RP’s best interests to deprive them of their liberty  To make a recommendation for care where the requirement is not met  To determine how long the authorisation should last

34. Assessments – Best Interests  To stipulate any necessary conditions associated with DoL  To recommend someone to be appointed as the RP’s representative  To produce a report detailing conclusions and why (submitted to the SB)  To conduct review assessments

35. And Finally.....Monitoring  The Care Quality Commission (CQC) monitor safeguards and practices  They will intervene where it believes standards are failing and (where necessary) take appropriate action

36. References  http://www.dh.gov.uk/en/SocialCare/Deliveringadultsoci alcare/MentalCapacity/MentalCapacityActDeprivationofLi bertySafeguards/index.htm (Accessed 28/8/09 16.00 p.m.)  http://www.dh.gov.uk/en/Publicationsandstatistics/Publi cations/PublicationsLegislation/DH_084982 (Accessed 28/8/09 16.47 p.m.)