Transcript Deprivation of Liberty Safeguards

Deprivation of Liberty
Safeguards
Susan Inker
Care and Health Law
What is the purpose of the deprivation
of liberty safeguards?
The deprivation of liberty safeguards address the October 2004
ECHR judgment in HL –v- UK (the Bournewood judgment)
which
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Requires that people may only be deprived of their
liberty through a process set out in law
With safeguards to prevent arbitrary detention and
speedy access to a Court to review the detention
The Safeguards cover England and Wales (separate
Regulations for Wales)
What is the legislative framework for
the safeguards?
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The legislative provisions can be found in the Mental
Capacity Act 2005
They were introduced into that act by the Mental Health
Act 2007
Supported by Deprivation of Liberty safeguards – Code
of Practice to supplement the main Mental Capacity Act
2005 Code of Practice
Consultation by Ministry of Justice and Department of
Health on the draft code took place between September
07 and December 07 – report available
Laid before parliament in June 08 in draft and ended
laying period on 22nd July 2008
Final version of Code of Practice published 26th August
08
What is the legal status of the
supplemental Code
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As with the main Code, the supplemental
Code is published under Sections 42 and
43 of the MCA 2005. It covers both
England and Wales
It is intended as guidance rather than
instruction ie “comply…” for persons
exercising functions in relation to
deprivation of liberty safeguards
contained in Schedule A1 of that Act
People coming within the scope of the
Bournewood provisions
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Provisions relate to people 18 or over in England and Wales
who meet the relevant criteria
Have a mental disorder (as defined by Sec 1 of the MHA 1983
ie a disorder or disability of the mind
Lack the capacity to give their consent to plans made for their
care; and
Are deprived of their liberty within the meaning of Article 5 of
the convention despite not being subject to formal detention
under the MHA 1983
Will cover patients in hospitals and people in care homes
registered under the Care Standards Act 2000 whether placed
under public or private arrangements
Such people are largely those with significant learning
disabilities, elderly people suffering from dementia and some
others, eg someone suffering from a physical injury such as a
brain injury
What are the benefits and risks ?
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There had to be a legislative solution to respond to the
Bournewood judgment
The safeguards are most appropriately set in the
Mental Capacity Act as the issues raised in
Bournewood were primarily mental capacity issues
rather than mental health issues
Core principles of Mental Capacity Act which include
supporting a person to make their own decisions
whenever possible, acting in their best interests and in
the least restrictive manner will apply in the context of
deprivation of liberty safeguards
Avoids the need to extend sectioning under the Mental
Health Act which was heavily opposed during the
consultation
What are the benefits and risks?
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It is difficult to estimate the numbers of people who might need to
be covered by the safeguards and therefore difficult to assess the
impact of additional work in the field and for the Court of Protection
Estimated - approximately 500,000 people in E & W who have a
mental disorder and who lack capacity
Includes people with severe learning disabilities and older people
with dementia living in institutions.
1 in 10 of that number ie 50,000 would require additional
restrictions for their protection which might amount to deprivation
of liberty
10% of relevant population ie 5,000 subject to assessment for
authority to deprive of whom no more than 25% (1250) at any time
likely to be deprived of their liberty
On the basis of Ministry of Justice forecasts of the use of the Court
of Protection 2.5% of the 1250 people ie 1 in 40 might end up in a
Court of Protection hearing
Views on consultation
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Estimated figures were challenged by many people
during the consultation on the Code
Felt Impact Assessment did not fully reflect the
probable situation
Government has reviewed the estimates and remains
of the view that the numbers of people these
safeguards will affect should be relatively small
It will keep the matter under ongoing review!
There is a revised Impact Assessment
www.dh.gov.uk/en/Publicationsandstatistics/Publicatio
ns/PublicationsLegislation/DH_084982
What happens in the meantime ?
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Interim guidance issued by the Department of Health
in 2004 in England and 2005 Wales following the
Bournewood judgment drew the attention of hospital
and care home managers to the importance of
avoiding the deprivation of an individuals liberty
Government figures suggest that because of
compliance by hospital and care home managers to
remaining lawful under the interim guidance, and when
the Deprivation of Liberty Safeguards come into force,
the hospitals and care homes having an
understanding of what amounts to deprivation of
liberty, and how to avoid it, there will be less people
who will need authorisation….have they got it right ?
Views on consultation
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Estimated figures were challenged by many people during the
consultation on the Code
Impact Assessment did not fully reflect the probable situation.
Underestimated the number of people affected, the amount of time
to implement the safeguards and the associated costs
Comments include
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Uncertainty of managing authorities as they are unclear whether they
have “detained residents” and they will play safe and refer everyone
who might possibly qualify
The Impact Assessment assumes that care homes have already acted
upon the earlier interim guidance in order to avoid unlawful deprivation
of liberty and anecdotal evidence would suggest this is not the case
Impact Assessment does not refer to later case law eg DE and JE v
Surrey CC which potentially hugely widens the scope of what counts
as deprivation of liberty
There is reference to 17,000 people in local authority care, but does
this figure reflect those who are funding their own care ?
What does the Report say….
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Government has reviewed the estimates
and remains of the view that the numbers of
people these safeguards will affect should
be relatively small
It will keep the matter under ongoing review!
There is a revised Impact Assessment
www.dh.gov.uk/en/Publicationsandstatistics/
Publications/PublicationsLegislation/DH_084
982
What is the likely impact on local authorities
with social services responsibilities ?
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As a supervisory body they will be required to deliver a system that
receives and processes applications from managing authorities - 80%
LA 20% NHS
Some authorities may be supervisory bodies and managing authorities
Appoint suitably trained staff to undertake best interests and mental
health assessments
Establish an authorisation panel which will consider the outcome of
such assessments
Comply with statutory requirement to communicate outcome with
defined persons
Determine the length of any deprivation of liberty and consider any
relevant conditions that should be attached
Liaise closely with NHS to make sure sufficient assessors are
available to meet demand for authorisations
Ensure commissioning of existing IMCA service is extended to meet
need
Transitional arrangements
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Safeguards will significantly impact
on local authorities, PCT’s, care
homes and hospitals
Transitional arrangements will be
placed before Parliament with a
commencement order
To assist and inform local planning
the proposed arrangements are
being shared in advance
Transitional arrangements
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Managing authorities will still be required to apply for
deprivation of liberty authorisations from 1 April 2009 but
there will be transitional arrangements
It is proposed that urgent authorisations given during April 09
will be effective for 21 days rather than the usual 7 days
For urgent authorisations given from 1 May 09 the usual
period will be 7 days
It is proposed that in respect of requests for standard
authorisations received by supervisory bodies during April 09
the timeframe for assessment will be 42 days rather than 21
days
For requests for standard authorisations from 1 May 09 the
usual period of 21 days for assessments will apply
To allow for supervisory bodies taking longer to process
assessments in the first month and alleviate pressures for
supervisory bodies and managing authorities in initial stages
of the DOL safeguards implementation process
What is deprivation of liberty and what
is it not ?
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The ECtHR judgement in the HL v United Kingdom case did not
define what was meant by “deprivation of liberty” though it
confirmed that it was different from mere restriction of liberty
“to determine whether there has been a deprivation of
liberty, the starting-point must be the specific situation of
the individual concerned and account must be taken of a
whole range of factors arising in a particular case such as
the type, duration, effects and manner of implementation of
the measure in question. The distinction between a
deprivation of, and restriction upon, liberty is merely
one of degree or intensity and not one of nature or
substance”
Principles established by Strasbourg
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Firstly, a basic distinction should be drawn between mere restrictions
on liberty of movement and the deprivation of liberty. The former
governed by Article 2 of Protocol No 4 and do not amount to a breach
of Article 5 (Guzzardi v Italy (1980) 3 EHRR 333, Ashingdane v United Kingdom
(1985 7 E.H.R.R 528, H. M. v Switzerland (26 February 2002) Application No
39187/98
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Secondly, the distinction is one merely of degree or intensity of
restrictions, not of nature or substance
Thirdly, the court must start with the concrete or actual situation of the
individual concerned and take account of a range of criteria, such as
the type, duration, effects and manner of implementation of the
measure in question.
Fourthly, account must be taken of the cumulative effect of the various
restrictions
Fifthly, the purpose of any measures of restriction is a relevant
consideration. Whether in the interests of the individual or public.
(Nielsen v Denmark (1988) E.H.R.R 175, H.M v Switzerland
What is deprivation of liberty and what
is it not ?
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Each case must be considered on its merits and account
must be taken of type, duration, effects and manner of
implementation of measure in question
There is unlikely to be any simple definition that can be
applied in every case
It is not possible to say that any single factor alone would
always or could never amount to a deprivation of liberty
The new provisions exist only to provide a proper legal
process and suitable safeguards in circumstances where
deprivation of liberty is an unavoidable necessity in a
person’s own best interests
Every effort should be made to prevent deprivation of liberty
becoming unavoidable
What should decision-makers consider
when deciding…..
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All the circumstances of the case
What measures are being taken in relation to the
individual? For what period do they endure? What are
the effects of any restraints or restrictions? Why are
they necessary?
What are the views of the relevant person or their
family? Do they object?
How are restrictions or restraints implemented ? Do
they go beyond restraint or restriction to deprivation of
liberty?
Are there any less restrictive options for delivering the
care ?
Does the cumulative effect of all the restrictions
imposed amount to deprivation of liberty, even if
individually they would not?
Factors which amounted to deprivation
of liberty in previous cases
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Restraint was used, including sedation to admit a person
who was resisting
Staff exercised complete and effective control over care
and movement for a significant period
Professionals exercised complete control over
assessments, treatments, contacts and residence
A person would be prevented from leaving if they made a
meaningful attempt to do so
A request by carers for the person to be discharged from
their care was refused
A person was unable to maintain social contacts because
of restrictions placed on access to other people
A person lost autonomy because they were under
continuous supervision and control
Factors the court may deem relevant when
considering whether someone is deprived of
their liberty or not…..
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The person is not allowed to leave the facility
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If a person is, or would be prevented from leaving the
facility at all – (DE and JE v Surrey CC)
Whether by distraction, locked doors or restraint or they are
led to believe that they would be prevented from leaving if
they tried
A person is not deprived of their liberty simply because
they lack the physical ability to leave, or the mental
capacity to form a genuine intention to leave, but might be
if family, friends or carers are prevented from moving them
to another care setting or from taking them out at all, or
they could go outside, escorted or not and are not given the
opportunity to, or a decision has already been made to
prevent them leaving
Factors the court may deem relevant….
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The person has no or very limited choice
about their life within the care home or
hospital such as:
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Where they can be within the care home or
hospital – ie restriction of freedom of
movement physically or through regular use
of medication or seating
What they can do
Who they can associate with, or
When and what they can eat
What factors the court may deem
relevant…..
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The person is unable to maintain contact
with the world outside the care home or
hospital
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Who they can contact, who may visit and
when they can use the telephone – does not
apply to proportionate restrictions
If the person is cut off from family, say who
can only visit in the evenings and visiting
hours state no evening visits
What factors the courts may deem
relevant…..
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Restraint is/was used on admission to hospital
or care home and the person is not realistically
subsequently able to leave
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Restraint may lawfully be used on admission or to
administer treatment or care under Section 6 of the
MCA 2005.
This is an indicator that the person’s wishes may be
being overridden.
Consideration must be given on whether it is
reasonable restraint or deprivation of liberty. If the
latter then authorisation is necessary
Ashingdane v United Kingdom (1985)
Facts
Man placed in Broadmoor following his conviction for a
number of offences. He suffered from paranoid
schizophrenia which was controlled by medication and
supervision but he was unwilling or unable to comply with
his treatment voluntarily and so, if released, might be
dangerous. His condition improved and the Secretary of
State authorised his transfer to Oakwood House, a local
psychiatric hospital on a conditional discharge
Issues
Whether the conditions were mere restriction on, or
deprivation of liberty
Ashingdane v United Kingdom
Conditions
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Applicant was placed in a closed ward which was locked, at least at night
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No special security but a high staff/patient ratio
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He was allowed freedom, unescorted, in the hospital grounds for two hours
a day
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In 1981, he was moved to an open ward
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From 1984, regular, unescorted leave to visit family (every weekend from
Thursday to Sunday)
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Free to leave hospital Monday to Wednesday, provided only that he
returned to his ward at night
Were the conditions mere restrictions or deprivation of liberty?
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Held, the court took the view that he remained detained and deprived of his
liberty at Oakwood, in the sense that his liberty, and not just his freedom of
movement, has been circumscribed both in fact and law even though he
has been permitted to leave the hospital on frequent occasions.
Nielsen v Denmark (1988)
Facts
The mother of a 12 year old boy arranged for his admission to
the state hospital’s psychiatric ward. The boy had a nervous
disorder and required treatment in the form of regular talks and
environmental therapy. The treatment given, and the conditions
under which it was administered, was appropriate. The duration
of the treatment was five and a half months. The boy, however,
applied to the ECtHR, feeling that he had been deprived of his
liberty
Held
The restrictions imposed on the applicant were not of a nature or
degree similar to the cases of deprivation of liberty specified in
paragraph 1 of Article 5. In particular, he was not detained as a
person of unsound mind….indeed, the restrictions to which the
applicant was subject were no more than the normal
requirements for a care of a child of 12 years of age receiving
treatment in hospital. It did not amount to deprivation of liberty,
but was a responsible exercise by his mother of her custodial
rights in the interests of the child.
R v Mental Health Review Tribunal
(2004)
Facts
MP is a 69 year old man. In 1976 he was convicted of manslaughter. He had strangled an 11
year old boy he had invited into his house. He had a long history of sadistic paedophilic
sexual fantasies and assaults on young boys. He was committed to hospital pursuant to
Sections 37 and 41 of the Mental Health Act 1983 subject to a restriction order without
limitation of time.
Issues
The issue was whether it is in fact appropriate to direct MP’s conditional discharge and
whether the conditions would amount to a deprivation of liberty and therefore unlawful
Tribunal Powers
The powers of the tribunal dealing with a restricted patient are, if the tribunal are not satisfied
that the patient is suffering from a mental disorder of a nature or degree which makes it
appropriate for him to be liable to be detained in a hospital for medical treatment, or for his or
anyone else’s health and safety he should receive such treatment, then the tribunal must
order discharge. If however the tribunal is satisfied that it is appropriate for the patient to
remain liable to be recalled to hospital for further treatment then they must direct a
conditional discharge which may be deferred until arrangements have been made and are in
place to meet the conditions. A tribunal has no power to impose conditions which would
amount to deprivation of liberty.
If they were imposed for the benefit of and to assist the patient rather than for the protection
of others it will be easier to regard them as restrictions on rather than deprivation of liberty
R v Mental Health Review Tribunal
Conditions
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The patient shall take medication, in particular anti-libidinal medication as
prescribed and comply with any other treatment as directed by his RMO
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He shall reside at accommodation with properly qualified round the clock
staff experienced in working with violent sexual offenders. He is unable to
leave it without an escort
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He shall, when not in the accommodation, at all times be escorted by a
member of the accommodation’s permanent staff
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He shall accept and comply with regular supervision by a consultant
psychiatrist and by a social worker
Were the conditions mere restrictions or deprivation of liberty?
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Court held “it is quite impossible to argue that what is proposed
could amount to anything less than a deprivation of liberty” “the
conditions imposed in this case would inevitably result in a
deprivation of liberty”
R (G) v Mental Health Review Tribunal
(2004)
Facts
G a 67 year old man attempted to strangle his 10 year old niece and
raped her mother in 1966. Found unfit to plead and admitted to
Broadmoor Hospital and treated as if he were committed to hospital
under Sections 37 and 41 of the MHA 1983. He suffered from
paranoid schizophrenia. He was treated and in 2003 it was felt by the
MHRT that he could be discharged conditionally. Absolute discharge
was not considered appropriate. Conditional discharged deferred
until conditions could be put in place. One of the conditions (a hostel)
could not be found. Case reviewed in 2003/4 and it was felt there
should be a revocation of the conditional discharge (as a provisional
decision which could be altered on changed circumstances). In 2000
he was transferred to Thornford Park Hospital, a private sector
psychiatric hospital. He moved into a rehabilitation flat at Thornford
Park in 2003. He was a detained patient in a rehabilitation flat. The
proposal was that he remained there but was “conditionally
discharged” with the same conditions as he was subject to when
detained.
G v Mental Health Review Tribunal
Conditions for Conditional Discharge
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To reside at a named hostel
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To accept supervision and treatment as directed by his M
RMO
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To accept social supervision from the appointed supervisor
Conditions at Thornford Park Hospital as a detained patient
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He lived in a rehabilitation flat within the main secure hospital building
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He has to abide by the “house rules” but has leave granted to him
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Access to and from the grounds is only by way of secure and substantial security
gates operated by remote control and video
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When he wishes to go out he is required to agree with staff the times of leaving and
return and where he will be going
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He can only take leave during daylight hours and at other times staff can refuse to
allow leave
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He has to surrender his electronic key to his flat when he goes out
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He can be forcibly returned to hospital if necessary
Were the conditions mere restriction of liberty or deprivation of liberty?
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The Court held that the lack of any changes to the regime or accommodation leads
inexorably to the conclusion that there will be a deprivation of liberty
HL –v- UK - Bournewood
Tested the boundary between appropriate restraint and the loss of Human Rights under Article 5 –
the right to liberty.
Facts:
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Patient was a 48 year old profoundly autistic man with a learning disability. For over 30
years, he was cared for in hospital. He was then entrusted to his carers and lived with them
for 3 years but following an incident of self harm at a day centre in 1997 he was re-admitted
informally. His carers wanted him to return to them, the hospital refused. They were unable
to visit. He lacked the capacity to say whether he would stay in hospital or accept treatment.
He was not detained under the Mental Health Act 1983. Was he deprived of his liberty?
Result:
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The man was so deprived as he was under the complete and effective control of the health
care professionals.
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A question of intensity and degree.
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Also, one of the key considerations in all of the actions taken under the Mental Capacity Act
is that the ‘appropriate and least restrictive act’ must be considered. In the Bournewood
case the acts taken were not the ‘most appropriate and least restrictive’.
Illegality in European law terms:
The arbitrariness of the detention, and the absence of a clear enough legal framework at the time,
for the protection of incapacitated but compliantly detained persons….
R v Bournewood Mental Health NHS
Outline of restriction/deprivation
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He was not placed on a locked ward – he was compliant and showed no desire to
leave
He would have been detained compulsorily if he had tried to leave
He was controlled by way of supervision and medication
Were the conditions mere restriction or deprivation of
liberty?
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High Court – found against – not detained (voluntary patient,compliant)
Court of Appeal – found for – detained
House of Lords – reversed decision – not detained – not unanimous – but if detained
would be in best interests so lawful
ECtHR – found “person of unsound mind” – he was detained – best interests were
unlawful and incompatible under EU law – arbitrary and lack of challenge to
lawfulness of detention
These cases show the difficulty of deciding in an individual case on which side
of the line it should fall between deprivation of liberty and restrictions on liberty
DE and JE v Surrey County Council
(2006)
Facts:
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DE was a 76 year old man who, following a major stroke, had become blind and
had significant short term memory impairment. He also had dementia and
lacked capacity to decide where he should live, but was still often able to
express his wishes with some clarity and force
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DE was married to JE. In August 03 DE was living with JE at home. JE felt she
could not care for DE and placed him on a chair on the pavement in front of the
house and called the police
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The local authority placed him in two care homes
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He had lots of contact with the outside world, never subject to physical or
chemical restraint
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DE repeatedly expressed the wish to live with JE and JE wanted DE to live with
her
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SCC would not agree to DE returning to live with or visit JE and made it clear
that if JE were to persist in an attempt to remove DE, SCC would call the police
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The supposedly incapacitated person’s wife brought declaratory relief
proceedings against a County Council for keeping her husband in a care home
for 9 months before the action.
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No perimeter security and man could leave at any time by operating a push pad
but nonetheless he is de facto deprived of his liberty
DE and JE –v- SCC
Result:
 The key issue is whether the person is free to leave
 The distinction between deprivation of and a restriction
upon liberty is one of degree or intensity and not one of
nature and substance
 In this case the man was deprived of his liberty
 Misrepresenting one’s legal powers can be as bad as
locking someone up
Lesson: Assess for capacity and document best interests,
and don’t wait to be sued – go to Court and ask first, if
you really don’t want to provide care at home with 24
hour supervision….
LLBC v TG and JG, KR (2007)
Facts
TG a 78 year old man, lacking capacity and suffering from
dementia and cognitive impairment. He was resident in a
care home but was admitted into hospital with pneumonia
and septicaemia. The original care home terminated his
placement and the local authority were trying to find an
alternative home when he was ready for discharge. Whilst
in hospital there was a dispute between the LA, TG’s
daughter and granddaughter about TG’s future. The
relatives wanted TG to live with them, the LA believed TG
needed 24 hr care in a residential care home. The LA
applied for an order directing that TG be delivered to the
care home identified as appropriate by the council. He
originally went to the care home. The relatives were not
informed of the hearing. The order was changed and TG
went to live with the relatives. The relatives claimed
deprivation of liberty whilst TG was at the care home.
LLBC v TG and JG,KR
Human Rights Issues
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TG was unlawfully detained in breach of Article 5 as a result of the court order requiring
him to go to and remain at Tower Bridge Care Centre
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The procedure conducted under the Inherent jurisdiction of the High Court failed to
meet TG’s rights under Art 5 (4) to determine the lawfulness or otherwise of his
detention
Outcome
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Tower Bridge Care Centre was an ordinary care home where only ordinary restrictions
on liberty applied
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The family were able to visit TG on a largely unrestricted basis and were entitled to
remove him from the house for outings
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TG was personally compliant and expressed himself as happy at Tower Bridge
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There was no occasion when he was objectively deprived of his liberty
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The placement was properly authorised by the court, resulting from a proper
assessment of TG’s capacity and gave the ability for the family to apply to vary order
This case was near the borderline between mere restriction of liberty and Article 5
detention, but looked at as a whole and having regard to relevant
circumstances, it falls short
Re PS (An Adult) (2007) – The
Sunderland Case
Facts :
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Case involved an elderly lady born in 1925 who it was subsequently found lacked capacity
and suffered from physical ill health
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Admitted to hospital on 22 January 2007. Ready for discharge by 7 February 2007.
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Crisis emerged when her daughter informed the hospital that she was intending to discharge
her mother into her own care rather than that of a residential care and elderly mentally infirm
unit where elderly lady had lived since July 2006. Daughter asked hospital not to tell the LA
of what she was planning.
Issues :
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Can the court make an order preventing the elderly woman’s discharge from the care of the
treatment unit preferred by the LA
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Can the court appoint a receiver to prevent the daughter from dissipating her mother’s
savings and pension rather than require the LA to make an application under the Mental
Health Act 1983
Results:
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A judge exercising the inherent jurisdiction of the court has power to direct that the adult
shall be placed at and remain in a specified institution such as a hospital, residential unit,
care home or secure unit.
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There is no reason why the mere existence of an available remedy under Part VII of the MHA
1983 should preclude the exercise of the inherent jurisdiction in an appropriate case.
A perfect case to illustrate judges moulding and adapting the inherent
jurisdiction so that is compatible with the requirements of Article 5 – therefore
closing the Bournewood Gap
The new regime
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A Bournewood authorisation relates solely to the issue of
deprivation of liberty
It does not give authority to treat people or do anything else
that would normally require their consent
Treatment must not conflict with a valid decision made by a
donee of a Lasting Power of Attorney or Deputy
May not be sought where MHA 1983 could be used instead
Advance Decisions may be relevant
If someone is being given life sustaining treatment or some
other intervention is being done to prevent serious deterioration
in condition then there is positive lawful authority (and not just
a defence to legal liability) whilst determination is sought from
Court of Protection on the issue (new Section 4B of the Act)
Responsibilities in Deprivation of Liberty cases
Managing Authority
Hospital or Care Home
Supervisory Body
PCT or LA
Responsible for care and requesting an
assessment of deprivation of liberty
Responsible for assessing the need for
and authorising deprivation of liberty
Relevant Person
Assessors
Person being deprived of liberty
Family/Friends/Carers
Carry out assessments
Representative
Providing independent support
Consulted, involved and provided
with all information
IMCA
Court of Protection
Practical Steps to reduce the risk of
deprivation of liberty and minimise risk of
legal challenge…
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Ensuring decisions are taken and reviewed in a structured way and
reasons recorded. Protocols for decision making should include
consideration on whether deprivation of liberty may arise and how it
could be avoided
Effective, documented care planning
Proper assessment of whether the person lacks capacity to decide
whether or not to accept the care proposed
Ensuring admissions to residential care or hospital are fully considered
and any restrictions placed on the person kept to a minimum
Ensuring proper information is given to person, carer and family and
friends for the purpose and reason for admission
Taking proper steps to ensure person retains contact with family,
friends and carers
Ensuring assessment of incapacity and care plan are kept under
review
Key points for Care homes and
hospitals (managing authorities)






Incorporation into care planning the need for assessments
on whether a person has capacity to consent to what is
proposed and if not whether their actions are likely to result
in deprivation of liberty
Must not deprive a person of their liberty, unless in an
emergency, until a standard authorisation to do so has been
issued by supervisory body
Such authorisation must be requested and then
implemented by managing authority
Authorisation must be sought in advance of deprivation of
liberty unless in extremely urgent situations
Any conditions attached to authorisation must be complied
with by managing authority
A managing authority should monitor whether the relevant
person’s representative maintains regular contact
Key points for local authorities and
PCT’s (supervisory bodies)









They will receive applications from managing authorities for standard
authorisations of deprivation of liberty
They will need to ensure that sufficient assessors are available to meet
the needs in their area and that they have skills, qualifications and
training to perform the function
Before an authorisation is given the supervisory body must have
requested written assessments to ensure criteria met
Authorisation may not be given unless the assessors recommend it
Duration must be specified and must not exceed 12 months
Conditions may be attached
Specified people must be notified of the decision in writing
For every person who is under a standard authorisation for deprivation
of liberty, the supervisory body must appoint a “relevant person’s
representative
At any time whilst the authorisation is in force the relevant person, the
relevant person’s representative or IMCA can ask for the authorisation
to be reviewed
Key points for both managing
authorities and supervisory bodies






Whilst an authorisation is in place lasting for up to 12 months, the
managing authority may seek fresh authorisation
Authorisation should be reviewed and revoked if there has been a
significant change in someone’s circumstances
A decision can be challenged by a relevant person, relevant person’s
representative by way of application to Court of Protection
If there is a question of whether a person should be deprived of their
liberty it will be lawful if it is necessary for the purpose of life sustaining
treatment or a vital act to prevent serious deterioration in their
condition whilst the issue is resolved
The complete process of assessing and authorisation for deprivation
of liberty should be clearly recorded, monitored and audited as part of
an organisation’s governance structure
Management information should be recorded and retained, and used
to measure the effectiveness of the deprivation of liberty processes
The deprivation of liberty authorisation
process – requesting an authorisation




Managing authority must identify every person
who is incapable of consenting to admission and
is of risk of being deprived of his/her liberty
For each “relevant person” the managing authority
must apply to a “supervisory body” for a standard
authorisation for depriving that person of their
liberty
A standard authorisation must be obtained before
the deprivation of liberty begins, unless really
urgent
Remember the transitional arrangements
proposed for April 09
A supervisory body is responsible for
considering requests, commissioning
assessments and authorising
Hospital England
 If a PCT commissions the relevant care or treatment, that PCT
 If the National Assembly for Wales or an LHB in Wales commissions
the relevant care and treatment in England, the NAW
 In any other case, the PCT for the area in which the hospital is situated
Hospital Wales
 National Assembly for Wales or an LHB unless a PCT commissions
the relevant care and treatment in Wales, in which case the PCT will
be the supervisory body
Care Home – England or Wales
 Local authority for the area in which the person is ordinarily resident
 If of no fixed abode then the local authority for the area in which the
care home is situated
Process – 2 types
Standard (Schedule A1 Part 4) and Urgent (Schedule A1 Part 5)
 The managing authority must request a standard authorisation
when it appears likely that, either currently or at some time during
the next 28 days, someone will be accommodated in their hospital
or care home in circumstances which amount to a deprivation of
liberty.
 The request must be made to the supervisory body – preferably in
advance
 If this is not possible, an urgent authorisation may be issued by the
hospital or care home itself if certain criteria are met, who must
then obtain standard authorisation within 7 calendar days
 Regulations – The Mental Capacity (Deprivation of Liberty:
Standard Authorisations, Assessments and Ordinary Residence)
Regulations 2008 laid before Parliament on 20th May 2008 state
what information should be provided
The assessment process

An authorisation can only be granted where it is
:



In the best interests of the person that they be
detained as a resident of the hospital or care home in
circumstances which amount to a deprivation of
liberty;
Necessary that the person be a patient in the hospital
or care home in order to prevent harm to him/herself;
and
A proportionate response to the likelihood of him/her
suffering harm and the seriousness of that harm
What must a request include ?


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The person’s name and gender
The person’s age or where this is not known whether MA
reasonably believes the person is aged 18 or over
The address and telephone number where the relevant
person is currently located
The name, address and telephone number of the MA and
name of person dealing
The purpose of the proposed deprivation of liberty,
including relevant care plans and needs assessment
The date from which the deprivation of liberty
authorisation is sought
Whether an urgent authorisation has been issued and, if
so, the date of expiry
Other relevant information, if available is requested, such
as medical information, diagnosis of mental disorder,
details of proposed restrictions amongst others
Where should applications be sent if it is a
care home requesting authorisation?


If made by a care home, to the LA for the
area in which the relevant person is
ordinarily resident
If relevant person is not ordinarily
resident in the area of the LA or if the
care home does not know where the
person lives, or the person does not come
from England or Wales, the application
should be sent to the LA in whose area
the care home is located
Where should applications be sent if it
is a hospital requesting authorisation?

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

If care is commissioned by PCT, to that PCT
If care is commissioned by Welsh Ministers, to
LHB for the area in which the relevant person is
ordinarily resident
If care is commissioned by LHB, to that LHB
In any other case, (care commissioned privately)
to the PCT for the area in which the relevant
hospital is situated
If application is sent to wrong SB, can be passed
on to correct one without need to re-apply
What action will the supervisory body
take ?

Upon receipt of the application for
deprivation of liberty they should as soon
as is practical and possible



Consider whether the request is appropriate
and should be pursued, and
Seek any further information that it requires
from the managing authority to help with the
decision
As soon as they confirm that the request
should be pursued, they must obtain the
relevant assessments to ascertain
whether the qualifying requirements are
met.
What happens when MA and SB are
the same organisation?



They can act in both capacities
Regulations have been relaxed in relation to the
eligibility criteria for independent assessors
The Government have moved from a position of
preventing a person from being a best interests
assessor where they work in the same hospital or
care home as the relevant person, to one where a
best interests assessor is prevented from fulfilling
the role where they are actually involved in the
care of the relevant person
The qualifying requirements – 6 written
assessments

In order to ensure that the deprivation of liberty
provisions apply and criteria met, the
supervisory body must obtain six written
assessments of the relevant person






Age assessment
Mental Health Assessment
Mental Capacity Assessment
Best Interests Assessment
Eligibility Assessment
No refusals Assessment
Eligibility to carry out assessments general
All assessments (other than age assessment) must be
carried out by persons:
 Who are insured in respect of any liabilities
 A supervisory body is satisfied that they have
successfully completed a course of study that is
approved by the Secretary of State
 A supervisory body is satisfied that they have the skills
and experience appropriate to the assessment
 There must be a minimum of two assessors
 The mental health and best interests assessors must
be different people
 One of main concerns in consultation was the number
of assessors needed to complete the six assessments
 It was made clear that two assessors could be used to
do all 6 assessments and this would be expected
Age assessment


Establish whether the relevant person has
reached 18. The legal basis for depriving a
person who lacks capacity and is under the age
of 18 in a Bournewood type scenario is Section
25 of the Children Act 1989 which meets the
requirements of Article 5 of the ECHR or
Section under the Mental Health Act 1983
Person undertaking age assessment will be
anyone deemed appropriate and could be an
individual doing other assessments
Mental health assessment






This is to confirm that the person has been diagnosed as having a
mental disorder within the meaning of the MHA 1983.
The assessment disregards the special provisions in that Act that
restrict detention in relation to persons with a learning disability.
A person with a learning disability can receive deprivation of liberty
safeguards, if appropriate and the other assessments are positive,
whether or not their disability is associated with abnormally aggressive
or seriously irresponsible conduct
Likely to be undertaken by a doctor approved under Sec 12 MHA 1983
or be a registered medical practitioner who has special experience in
the diagnosis and treatment of mental disorder
If the person is mentally disordered but also sectionable, professionals
will have to make a judgment as to which act to apply
Both must have completed MCA 2005 mental health assessor training
Mental Capacity assessment




Necessary to establish whether the relevant person lacks
capacity to consent to the arrangements proposed for their
care
Likely this assessment will be undertaken by anyone who is
eligible to act as a mental health or best interests assessor
Must take into account the need for the assessor to have
understanding and practical experience of the nature of the
person’s condition and it’s impact on decision making
Use an eligible person who knows the relevant person if this
will benefit them
Best Interests assessment



Involves two stages
Stage One - to establish whether deprivation of liberty is
occuring or is going to occur and, if so, whether:
Stage Two 



It is in the best interests of the person to be deprived of liberty
It is necessary for them to be so deprived in order to prevent
harm to themselves, and
Such deprivation is a proportionate response to the likelihood
of the person suffering harm and the seriousness of that harm
Assessment must be undertaken by an approved mental
health professional or a social worker, nurse, occupational
therapist or psychologist with the skills and experience
required by Part 1, (5) (1) a,b,c,d of the Regulations
Eligibility assessment



Status, or potential status, under the Mental Health Act 1983
– confirms whether the relevant person should be covered
by that Act rather than the deprivation of liberty safeguards
under the Mental Capacity Act 1983
It must be confirmed that person is not detained under the
MHA 1983 or
the authorisation if granted, would be inconsistent with an
obligation placed on them under the Mental health Act 1983,
such as a requirement for them to live somewhere else.




Leave of absence from detention under the Mental Health
Act 1983
Subject to guardianship
Supervised community Treatment
Conditional Discharge
Eligibility assessment




In addition, if the deprivation of liberty in a hospital wholly
or partly for the purpose of treatment for mental
disorder, the person will not be eligible if
they are currently on leave of absence from detention under
the MHA 1983, or subject to supervised community
treatment or conditional discharge, in which case powers of
recall under MHA 1983 should be used, or
They object to being admitted to hospital, or to some or all
the treatment they will receive there for mental disorder, and
they meet the criteria for an application for admission under
Section 2 or Section 3 of the Mental Health Act 1983
Regulations state that anybody the supervisory body
considers to be appropriate – having relevant experience,
training and skills specifications, may undertake the
assessment
No refusals assessment



To establish whether an authorisation to deprive a person
who lacks capacity to consent of their liberty would conflict
with other existing authority for decision making for that
person
Likely to be undertaken by anybody supervisory body
deems has appropriate skills and experience to perform the
role
A “refusal” includes
 A valid and applicable advance decision relating to some
or all of the treatment that the person would receive if an
authorisation was granted; and (if it is treatment for
mental disorder sectioning the person trumps that type
of AD)
 A valid decision by a donee of a Lasting Power of
Attorney or Court Appointed Deputy
Time frame for assessments


All assessments must be completed with 21 days
from the date that the supervisory body receives a
request from a managing authority
Where a supervisory body receives a request for
a standard authorisation and the managing
authority has given an urgent authorisation, all
assessments required for that standard
authorisation must be completed during the period
the urgent authorisation is in force
Standard Authorisation – Schedule A1
Part 4


Only the supervisory body may give a standard
authorisation
The managing authority must have requested it
under their duty to request authorisation, three
possibilities



Where relevant person is not yet accommodated, is
likely to be a detained resident, and meets all the
qualifying requirements
Where relevant person is already accommodated, is
likely to be a detained resident, and meets all the
qualifying requirements
Where the relevant person is a detained resident
and meets all of the qualifying requirements
Duty to request authorisation: change
in place of detention





Managing authority must request a standard
authorisation, if one has already been given, is
still in force; and
there is to be a change in place of detention ie
new care home or hospital
The application should be made before the move
takes place
If the move has to take place so urgently that this
is impossible, the managing authority of the new
hospital or care home will need to issue an urgent
authorisation
The only exception will be if care regime in new
hospital or care home does not involve
deprivation of liberty
Selection of Assessors

General Assessors must not :




Be financially interested in the care of the relevant person
Be a close relative of the relevant person; and
Be a close relative of a person who is financially interested in
the care of the relevant person
Best Interests Assessors must not:




Be involved in the care, or making decisions about the care of
the relevant person
If assessment relates to detention in a care home, be
employed by the care home
If assessment relates to detention in a hospital, not employed
to work at the hospital
Can be an employee of the supervisory body or managing
authority, but must not be involved in the care or treatment of
the person they are assessing nor in decisions about their
care, or in a line management relationship
Examination of records

An assessor may, at all reasonable
times, examine and take copies of



Any health record
Any record of, or held by, a local
authority and compiled in accordance
with a social services function
Any record held by a person registered
under Part 2 of the CSA 2000
Equivalent assessment already carried
out

The supervisory body are not required to
secure a particular kind of assessment if:




They already have one that has been carried
out in the last 12 months
It complies with all requirements under
Schedule A1
Supervisory body is satisfied that there is no
reason to believe that it is no longer accurate
Of which the supervisory body has a written
copy
Duty to give authorisation

Supervisory body must give a standard authorisation if

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
All assessments are positive
They have written copies of all assessments
They must decide duration - must not exceed the
maximum authorisation period stated in the best
interests assessment
It can be subject to conditions
It must be in writing
They must give a copy to relevant persons
representative, managing authority, relevant person,
IMCA, every person consulted by best interests
assessor
If the authorisation is refused they must give notice to
all of the above
They must keep a record of all authorisations given
What happens if criteria not met ?



If any assessments conclude that one of
the criteria is not met, then the
assessment process should stop
immediately and authorisation may not
be given
All relevant people, managing authority,
IMCA etc must be notified
If not given due to eligibility criteria then
consideration should be given to making
the person subject to the Mental Health
Act 1983
Actions following a decision




If any assessment concludes that the person does not
meet the criteria, the supervisory body must turn down
the request
Notify the managing authority, relevant person, IMCA or
RPR
Managing authority will need to decide if any action is
needed bearing in mind the reasons why authorisation
was refused ie no action, or care plan may need to be
changed to avoid any deprivation
What are the options



Go back to commissioner and ask for more money
Give notice to say “no thank you”
Give notice to the individual’s purchaser
Responsibilities of the commissioners
of care……what the Code says


Supervisory bodies and other
commissioners of care will need to
purchase care packages in a way that
makes it possible for managing
authorities to comply with the outcome of
the deprivation of liberty safeguards
assessment process when a request for a
standard authorisation is turned down
What to do with a “self funder” may
present particular problems because of
those controlling the funding
Duty to give information about the
effect of authorisation

The managing authority must both
orally and in writing take steps to
ensure the relevant person
understands





the effect of the authorisation
Right of application to the Court
Right to request a review
Right to have a an IMCA appointed
How to have an IMCA appointed
Right of third party to ask whether
authorisation is needed

If there is a relevant person who it is felt
is being deprived of their liberty which is
unauthorised




An eligible person (anyone other than the
hospital or care home) may request a
supervisory body to decide upon the issue
They must have told managing authority that
they think there is an unauthorised deprivation
of liberty
They must have asked the managing authority
to request a standard authorisation; and
The managing authority has not requested one
within a reasonable period of time
Urgent authorisation – Schedule A1
Part 5


Only the managing authority of relevant hospital
or care home can give an urgent authorisation
The managing authority must give an urgent
authorisation if,




They need to make a request for a standard
authorisation, and
They believe that the need to detain the relevant
person is so urgent it needs to begin before they
make the request, or
They have made a request for a standard
authorisation, and
They believe that the need to detain the relevant
person is so urgent it needs to begin before the
request is disposed of
Urgent authorisation – Schedule A1
Part 5






The authorisation must not exceed 7 days
It may be extended once for a maximum of a
further 7 days
It must be in writing
The managing authority must keep a written
record
The managing authority must inform orally and in
writing, the relevant person and IMCA
The managing authority must ensure the relevant
person understands the effect of the authorisation
and rights of appeal
Eligibility requirement not met



If a standard authorisation has been
given but relevant person has ceased to
meet the eligibility requirement,
managing authority must give notice to
the supervisory body
The standard authorisation will then be
suspended
Notice must be given to relevant person,
relevant persons representative and
managing authority
Disputes about the Place of Ordinary
Residence



When a local authority receives a request
from a care home for a standard
authorisation, or from an eligible person
on a potential unauthorised deprivation of
liberty in a care home, and
The local authority wishes to dispute that
it is the supervisory body, and
A question as to the ordinary residence of
the relevant person is to be determined
by the Secretary of State……..
Disputes about the Place of Ordinary
Residence



The local authority must act as supervisory body
in relation to a request until the determination of
any question as to the ordinary residence of the
relevant person
If another local authority agrees to act as
supervisory body in place of the one approached,
then they will become the supervisory body until
issue sorted out
When the issue of ordinary residence is
determined the local authority identified as the
supervisory body shall become the supervisory
body
Relevant person’s representative








Appointment must begin as soon as a best interests assessor is
selected by the supervisory body when a standard authorisation is
requested
Best interests assessor has to consider whether it is possible to
recommend a representative
Person with capacity may be invited to select their own
LPA donee or Deputy may select someone
Any appointment and functions of, a representative is in addition
to, and does not affect, any appointment of a donee or deputy
If no one makes a selection, best interests assessor must identify
someone, if they do not select then:
A supervisory body may select someone in a professional capacity
who they may make payments to
New regulations laid on 12th September 08 make an amendment to
ensure that if they select the RPR “they must not be employed by
the supervisory body” to avoid any potential conflict of interest
Role of Relevant Person’s
representative


To maintain contact with the relevant
person
To represent and support them in all
matters relating to the operation of the
deprivation of liberty safeguards,
including, if appropriate, triggering a
review, using an organisation’s complaints
procedure or making an application to the
Court of Protection.
Eligibility of a person to be a
representative

Eligible if:









18 or over
Able to keep in contact with the relevant person
Not prevented by ill health
Willing to be a representative
Not financially interested in the person’s managing
authority
Not a close relative of a person who is financially
interested in the person’s managing authority
Not employed by, or providing services to, the person’s
managing authority (care home)
Not employed to work in the person’s managing authority
in a role that is, or could be, related to the person’s case
(hospital)
Not employed to work in the person’s supervisory body in
a role that is, or could be, related to the person’s case
Appointment of Representatives




Appointment must be in writing
The representative must inform the supervisory
body in writing if they are willing to accept the
appointment
The appointment must be made for the period
of the standard authorisation
The supervisory body must send copies of the
written appointment to the appointed person,
relevant person, relevant person’s managing
authority, any donee or deputy, any IMCA, any
person consulted by best interests assessor
Appointment ceases if….

Appointment ceases if







representative dies or
are unwilling to carry on appointment,
period of role ends,
relevant person objects to them continuing in
their role,
a donee or deputy objects to them continuing
their role,
the supervisory body terminates the appointment
if not satisfied they are doing their job or
The supervisory body terminates the
appointment because the person is no longer
eligible to be a representative
Instruction of an IMCA




If there is a delay in appointing a relevant person’s
representative then the managing authority must notify the
supervisory body, who must instruct an IMCA to represent
the relevant person until a representative is appointed
Their role will be that of a relevant person’s representative
until one is appointed, when the IMCA role falls away
After a representative is appointed, the IMCA may still apply
to the Court of Protection for permission to take the relevant
person’s case to court in connection with the standard
authorisation. IMCA’s may also approach the Official
solicitor with the facts if they wish to challenge it legally
Both a person deprived of their liberty under a standard
authorisation and their representative have the statutory
right of access to an IMCA
Additional rights and responsibilities of
the IMCA if instructed at initial stage








Give information or make submissions to assessors
Receive from the SB copies of any deprivation of liberty
assessments
Receive a copy of a standard authorisation if granted
Be notified by SB if they are unable to give a standard
authorisation if assessments not positive
Receive a copy of any urgent authorisation
Receive copy of a notice declining to extend duration of
urgent authorisation
Receive a copy of a notice that an urgent authorisation
ceases to be in force
Apply to the Court of Protection for permission to take
the relevant person’s case to Court in connection with
the giving or refusal of a standard or urgent
authorisation
Role of an IMCA

Explain the authorisation to the relevant person,







what it means
why it has been granted
why it is considered that the person meets the
criteria for authorisation
How long it will last
How to trigger a review or challenge to the Court of
Protection
Provide support with a review or challenge
Make submissions to the supervisory body on
whether a qualifying requirement is reviewable
New jurisdiction for Court of Protection


Where either an urgent or standard authorisation
has been given under Schedule A1
The court may determine the following questions





(a) whether the relevant person meets one or more
of the qualifying requirements; (standard)
(a) whether the urgent authorisation should have
been given; (urgent)
(b) the period during which the standard
authorisation is to be in force; (urgent and
standard)
(c) the purpose for which the standard authorisation
is given; (urgent and standard)
(d) the conditions subject to which the standard
authorisation is given. (urgent and standard)
New jurisdiction for Court of Protection

If the court determines any of the previous
questions the court may make an order—




(a) varying or terminating the standard
authorisation, or
(b) directing the supervisory body to vary or
terminate the standard authorisation.
Where the court makes either of the above
orders, the court may make an order about a
person's liability for any act done in connection
with the standard or urgent authorisation before
its variation or termination.
An order may, in particular, exclude a person from
liability."
Monitoring, reviews and challenges









A managing authority has a duty to monitor the case on an ongoing
basis to see if the person’s circumstances change
The managing authority must set out in the care plan clear roles and
responsibilities for monitoring
The supervisory body must carry out a review if requested to do so
by the person concerned, their representative, the managing authority
or at any other time
They must tell the above that a review is going to be carried out
They must decide which, if any, of the qualifying requirements need
to be reviewed
They should record the reasons for decisions taken
In general, review processes should follow the standard authorisation
processes
If reviewed and requirement still met, reasons need to be recorded, if
not met, authorisation must be terminated immediately
Written notice must be given by the supervisory body of the outcome
to the above
What are the grounds for review ?




Person no longer meets all 6 qualifying
requirements
The person is ineligible because they
now object to receiving mental health
treatment in hospital
The reason why the person meets a
qualifying requirement is not the
reason stated in the authorisation
There has been a change in the
person’s situation
Who will monitor the safeguards ?
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Responsibility for the inspection process will be
on new regulator created by merging the
existing inspectorates
Commission for Social Care Inspection +
Healthcare Commission + Mental Health Act
Commission
Called the CQC – Care Quality Commission
Will be established during 2008 and expected to
be fully operational by 2009/10
What will they do ?
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Monitor the manner in which the deprivation of
liberty safeguards are being operated by
managing authorities and supervisory bodies by
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Visiting hospitals and care homes
Interviewing people accommodated in hospitals and
care homes
Requiring production of, and inspecting records
Report annually to the Secretary of State
summarising activity and findings
The inspection body will have the power to
require supervisory bodies and managing
authorities of hospitals and care homes to
disclose information to them
A scenario
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A very physically robust person with dementia is
living in a care home on a dementia wing access
out of which is locked off. The wing is in the shape
of a quadrangle.
The client has a symptom which compels them to
pace – run, in fact – whenever they get the
chance. The person is not trying to leave the
facility, it is felt, but sometimes needs more of a
physical challenge than available in the dementia
quadrangle.
The staff take 20 minute turns and escort the
person at speed, whenever she wants to be
pacing – but the corridor exit itself, is locked.
Is this deprivation of liberty?
A scenario…
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A person in a registered care home on continuing NHS
health funding because of their extremely challenging
behaviour towards themselves and others, is
disinhibited through brain injury. The person tends to
strip off in public and has found some predatory
teenagers who charge him for sexual favours if they
find the opportunity.
He is only allowed out if escorted, and this provision is
only made available during the day shift. He is variably
A) compliant with that system
B) doesn’t understand why he is not able to be
escorted at night
C) sometimes not compliant and tries to get out
because he is sexually frustrated and is prepared to
pay….
A scenario…
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A person is on a voluntary ward, having
been taken there under sedation. He is
68, dementing, and difficult to manage.
His spouse does not want to let him come
home again, but he doesn’t know this.
He is trying to leave.
The nurse says ‘If you try to go, I will use
my s5 holding powers under the Mental
Health Act to hold you here until you can
be detained”.
Is this deprivation of liberty?
A scenario…
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A young person with learning disabilities associated
with epilepsy – is used to wearing a protective helmet.
The man has gone off the idea of wearing it – his
girlfriend has said she doesn’t like it
The man is incapacitated in relation to some risks, but
understands what the helmet is for, basically.
He has no experience within his recall of going out
alone and unescorted
Support worker says
A) You can’t go out without it on (ie I will stop you
from going, or I will not unlock the door)
B) I won’t go with you, unless you wear it.
Is this deprivation of liberty?