Transcript Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards
– implications for purchasers and
providers
Belinda Schwehr
Care and Health Law
01252 725890
[email protected]
Why we need to get our heads around
this topic
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The paperwork and the staffing implications, if we don’t think carefully
and strategically (and in partnership) could sink us – it’s double the
mental incapacity care management workload, effectively, for anyone
not yet ‘in’ the system.
The Surrey case – making many more people likely to be covered by
the procedural protective provisions than the government thought
The fact that the ‘necessity’ to deprive someone of their liberty, comes
down to money, in the end, for staffing – so that it affects all
purchasers and providers very particularly, regardless of sector.
The possibility that the need to deprive a person of their liberty is an
eligibility trigger for free NHS health care
Ultimately, the fact that uncertificated DOL will be unlawful, even
though that was not the point of the Bournewood case!
The reality of life in supported living – it’s completely outside the
safeguards, despite the need for it to be inside!
The Sunderland case – suggesting that going to court first is what we
should be doing right NOW, for those needing to be DoL’d in care
homes
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 – due in in April 2009
The special addition to the MCA Code of
Practice was subject to consultation and the
final version is now available
So is the final version of the new MHA Code,
which needs to be read in conjunction
Regulations are now approved and finalised.
Implementation networks are being given
planning aids
Approved training for assessors should be
booked
People coming within the scope of the
Bournewood provisions
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The safeguards can cover anyone aged 18 or over in England and Wales who meets
the relevant criteria
They must have a mental disorder (as defined by Sec 1 of the MHA 1983 (it will be as
amended by the time in force) ie a disorder or disability of the mind
They must lack the capacity to give their consent to the basic plans made for their
care and accommodation; and they must, at the same time, be basically
acquiescent….yes, acquiescent…
If they are capacitatedly objecting, they cannot be treated for mental or physical
symptoms under the MCA anyway. The more vehement and coherent a person’s
objection, the less likely it is that it is an incapacitated objection.
If they are capacitatedly consenting, they are not deprived of their liberty.
If incapacitatedly objecting, they can be treated for physical conditions, under best
interests, anywhere, and any mental conditions in care homes. If they object so
much that more than restraint is required, without that objection becoming a
capacitated one, and DOL is necessary, they can be DOL’d.
BUT if they meet the critieria for an MHA section, they cannot be DOL’d for
treatment for mental conditions in a hospital, unless their attorney or deputy OKs
the proposed admission or treatment - in which case they become re-eligible for a
DOL anyway, so they don’t need to be admitted under s131.
Their attorney cannot authorise deprivation of liberty. So a section 2 or 3 under the
MHA is required if the person unavoidably needs to be treated for mental health
problems in a hospital, in circumstances where they will not be allowed to leave.
For the provisions to be relevant, the person in question must as a matter of fact and
law be deprived of their liberty within the meaning of Article 5 of the Convention
despite not being subject to formal detention under the MHA 1983
Making sense of this coverage
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If the person is capacitated on the issue in question, then
the MCA can’t apply at all - it would then be a civil law
wrong to imprison him or her, without some other specific
legal authority. If consenting, then no section or DOL would
be needed.
If the person is incapacitated but non-compliant, we can
treat the person, using restraint, etc, if we dare, under the
MCA, but we should not use the safeguards to deprive
him of his liberty in a hospital, because the MHA
provides specific safeguards for the detention of any people
whose non-compliance warrants ‘detention’ in a hospital.
If the person is mentally disordered (it is thought that all
incapacitated people, other than those who are purely
temporarily high or drunk, will fit the new definition of
mental disorder) the MHA could then be used – that means
sectioning or guardianship. Effectively, the MHA question is
not relevant to DoL as such, but it is relevant to whether it
is necessary or fairest to use the MHA.
Making sense of this coverage
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If the person is in their own home or in assisted
living, the safeguards don’t apply at all; and an
application to the court has to be made, or perhaps
private guardianship as amended, taken out by eg
an LA deputy, might work;
If the person is already in MHA detention or
guardianship, use of the MCA DoL safeguards to
require something inconsistent, is excluded;
If the person is under 18, then the position is very
complicated and depends on whether mental or
physical treatment is involved because of the
application of the MHA to all children, the possibility
of a s25 Children Act application, and the special
rules on capacitated young persons’ refusal of
consent to admission to mental hospital.
What should we be doing about keeping people
safe in the meantime?
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In care homes and hospitals: thinking about who
wanders and who does not, so that we are not ‘blanket’
managing by reference to corridors or condition
assumptions;
Identifying whether anyone has any objections to the
person’s situation; the person or a relative.
Inviting an application to court, if so; asking the LA to
bring one, if no-one else will.
Considering the use of guardianship to justify being
able to require a person’s return to the care home, and
after November 3rd, their conveyance to a care home.
In people’s own homes: recognising that since the
MCA was brought in, the discharge of public functions
does not authorise actual deprivation of liberty,
however great the risk is.
So this means that there are some people who cannot
be kept in their own homes, unless we go to court.
Impact on assessment, care planning,
contracting and monitoring
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Assessment: staff will have to specifically focus on
mental in capacity, in relation to wandering and selfharm, in order to assess risk and need properly. In clearcut DoL cases, the arrangements will have to be timed to
fit with a DoL ‘urgent’ process.
Care planning: LAs and care homes will have to
acknowledge, at the planning stage, whether deprivation
of liberty is required – you have a duty to plan for and
deliver appropriate care, and that means reasonably
safe care, yet lawful care.
Resource issues: If no certificate is granted, where is
the additional expense going to fall – on purchasers,
because less restrictive care costs more? Or on providers
– because they have to go on caring lawfully, if they are
going to continue? Then again, they can give notice, but
the public sector has a statutory duty of care….The latest
guidance indicates that the cost falls on the purchaser….
Impact on assessment, care planning
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Performance targets: there will be at least a few
incapacitated people for whom you would want to provide
care in their own homes, but who will have no-one to keep
them safe, and be at risk. You cannot lock them in, or
contract to lock them in, or get permission from their
relatives (not even an attorney or deputy) to lock them in.
NB Personalisation makes no difference.
Best value for these community based cases: LAs will
need either to fund or provide daytime supervision, or nightsitting, or accept that the person needs to go into a care
home, or spend the money going to the Court of Protection
for an order covering deprivation of liberty in their own home
or within daycare. Or you could organise assistive technology
to be provided in their home, which stops short of
deprivation of liberty, but enables you to honour your duty of
care…
‘Own home’ abuse cases: relatives may contend that
necessity is the reason for imprisoning their loved one, and
LAs will have to respond, in the context of safeguarding,
without any Bournewood process as a framework.
How these provisions will affect
contracting and monitoring
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Contracting: commissioners will have to purchase a level of
care that involves providers in the deprivation of liberty
safeguards.
Providers will have to come forward and acknowledge
deprivation of liberty even where the purchaser is a private
person and does not see why it is anyone else’s business.
Providers and commissioners will have to work out whether
expenditure on alarms, bleeps, sensors and monitoring
equipment, plus the staff to react to the bleeps when they go
off, are worth it, in terms of reducing the number of people who
would otherwise have to be put through the safeguards.
Monitoring: CSCI will have to treat a provider’s attitude to
deprivation of liberty as an aspect of fitness for the role; and a
home’s equipment and ironmongery as relevant to whether
deprivation of liberty is going on, in any given registered
setting.
CSCI will also also have to address whether regimes in
supported living and extra care settings amount to deprivation
of liberty, and take that up with the providers if so.
Is deprivation of liberty potentially
an NHS function? Ie more than what is ancillary
or incidental to social care?
...The DH’s 2007 decision support tool says funding should
follow these profiles and this pattern:
Clear Recommendation in favour of full funding:
 A level of priority, in one of the four domains that carry
it.
or
 A total of two or more incidences of identified severe
needs.
Potential Eligibility (and ADASS would say ‘shared
care’, even if not full funding, on this profile)
 One domain recorded as severe, together with needs in
a number of other areas.
 A number of domains with high and/or moderate
needs.
‘Behaviour’ as a domain, with regard to DoL
Challenging behaviour in this domain includes but is not limited to:
 Aggression, violence, or passive non-aggressive behaviour
 severe disinhibition
 intractable noisiness or restlessness
 resistance to necessary care and treatment (this may therefore include
non-concordance and non-compliance, but see note below)
 severe fluctuations in mental state
 extreme frustration associated with communication difficulties
 inappropriate interference with others.
Priority “Challenging” behaviour of severity and/or frequency that presents an
immediate and serious risk to self and/or others. The risks are so serious
that they require access to an urgent and skilled response at all times
for safe care.
Severe “Challenging” behaviour of severity and/or frequency that poses a
significant risk to self and/or others. The risk assessment identifies that the
behaviour(s) require(s) a prompt and skilled response that might be
outside the range of planned interventions.
High “Challenging” behaviour that poses a predictable risk to self or others.
The risk assessment indicates that planned interventions are effective in
minimising but not always eliminating risks. Compliance is variable but
usually responsive to planned interventions.
‘Cognition’ as a domain, in the context of DoL
“This may apply, but is not limited to, individuals with
learning disability and/or acquired and degenerative
disorders which places them at risk of self-harm
(including deterioration of health), neglect or
exploitation. “
Severe: severe cognitive impairment which may include,
in addition to lacking short-term memory, problems
with long-term memory or severe disorientation.
The individual is unable to assess basic risks, and
is dependent on others to anticipate even basic
needs and to protect them from harm.
High: level of cognitive impairment which is likely to
include marked short-term memory issues and
maybe disorientation in time and place. The
individual has a limited ability to assess basic risks with
assistance but finds it extremely difficult to make their
own decisions/choices, even with prompting and
supervision.
Struggling with the question whether
the patient is ‘objecting’
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4.15 [avoiding use of the MHA] may be possible even if
the provision of treatment unavoidably involves depriving
patients of their liberty. Deprivation of liberty for the
purposes of [physical] care or treatment in a hospital or
care home or mental treatment in a care home can be
authorised in a person’s best interests under the
deprivation of liberty safeguards in the MCA if the
person is aged 18 or over. [ie assuming any
attorney/deputy does not refuse DoL]
4.16 If admission to hospital for assessment or
treatment for mental disorder is necessary for a patient
who lacks capacity to consent to it, an application under
the Mental Health Act should be made if:
providing appropriate care or treatment for the patient
will unavoidably involve depriving them of their liberty
and the MCA deprivation of liberty safeguards
cannot be used [because the patient is objecting to
treatment or admission] NB but one can go back to
DOLS if an attorney or deputy consents to those
things]
Putting this all another way…
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[non-DoL] treatment in a hospital for a mental
disorder CAN be done and/or consented to by a
welfare deputy or attorney and if they did say yes to
those things, the person – despite their objection would not warrant detention because they would not
need treatment in a hospital….they could be
admitted informally.
But if the proposed treatment in a hospital
unavoidably involved DoL, the attorney can’t
consent, and the person’s objection means the
safeguards can’t apply, so he or she must still be
sectioned.
Treatment in a care home for a mental condition
does not attract the risk of ineligibility for DOLS. The
person’s objection is not determinative. The attorney
can consent to the treatment, but not to the
restraint, but it can still be done in the best interests
of the person, and under DOLS if DOL is needed.
Struggling with the meaning of objecting to
mental health treatment in hospital….
The Code then says “(unless an attorney or deputy validly
consents on their behalf to admission or treatment)”. We
don’t know - but we think that the authors mean to
convey that they think a person could, despite an
incapacitated objection, still be admitted informally and
treated in mental hospital, on the say so of an attorney,
albeit not detained) so that they would not have to be
sectioned.
The Code Addendum under the MCA confirms that this is the
correct interpretation: the words in that Code are “(unless an
attorney or deputy, acting within their powers, had consented
to the things to which the person is objecting)”.
So the person with an attorney need not be sectioned. And if
that much had been achieved by way of consent from an
attorney, the person could then be DOL’d, via the safeguards,
(not via the attorney’s consent to the DOL.)
Practitioners might think one would be better off being DOL’d
than s131’d in that regard, because of the route to Court to
challenge the DOL as opposed to no challenge to s131
admission.
Other reasons for sectioning a person
rather than using the MCA… 4.21 MHA Code
• the patient’s lack of capacity to consent is fluctuating or
temporary, and the patient is not expected to consent
when they regain capacity. This may be particularly
relevant to patients having acute psychotic, manic or
depressive episodes;
• a degree of restraint needs to be used which is justified
by the risk to other people but which is not permissible
under the MCA because, exceptionally, it cannot be said to
be proportionate to the risk to the patient personally;
• there is some other specific identifiable risk that the person
might not receive the treatment they need if the MCA is
relied on and that either the person or others might
potentially suffer harm as a result (I think this is to do
with no-one wanting the person in their care unless
sectioned)
These are all reasons to section, even when only restraint
and not DOL is needed…
Person-centred reasons for choosing to section a
person, rather than merely using the MCA
to provide treatment
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Jones points out that parts I and IV of the Mental
Health Act protect patients in significant ways in
relation to medical treatment; whereas the MCA
concept of best interests means that decision making
is unregulated, if no-one challenges it.
Again, the Nearest Relative has some protective
powers under the MHA, and none under the MCA.
The MHA patient has automatic tribunal access and a
referral obligation exists even if the right is not
exercised; whereas the MCA patient has no guarantee
of judicial oversight, unless someone hustles on their
behalf.
The MHA route gives specific legal authority to convey
patients and return absconding patients.
MHA patients will get free aftercare; MCA patients will
be chargeable after discharge from hospital.
Guardianship
- its role now and in the future
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Guardianship is free, and merely an
administrative discretionary process (unless
the LA needs to displace an objecting nearest
relative).
Guardianship does not give anyone access to
an injunction, backed with a power of arrest.
Guardianship cannot be used to deny contact
with someone with whom the guardian-ed
patient positively chooses to have contact.
Guardianship depends on a s12 doctor
agreeing that someone has a mental illness
or the kind of arrested development linked
with seriously irresponsible conduct.
Guardianship
- its role now and in the future
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That finding of aggravating elements can be
appealed within an appeal from displacement
of a nearest relative.
The use of powers towards the guardian can
only be challenged via judicial review!
Guardianship only lasts for 6 months
Guardianship provides no procedural rights
for the subject of the application (apart from
recent changes to allow the person to object
about their own nearest relative’s identity –
and they will get advocates under the MHA
2007).
Guardianship analysed
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Valid Guardianship is not dependent on proof of
incapacity.
What one could actually do with or to someone, under
it, did always turn on incapacity, because of the
common law.
Where a guardianed person had capacity, and was
clearly physically adamantly opposed to your
proposals, guardianship may not have ever been
sufficiently clear to justify assertive intervention, and
the common law could not have helped.
Where the person was acquiescent, although lacking
any insight into their situation, the old common law
would have meant that a best interests decision could
be taken, with necessity as a defence to legal
criticism, for actions short of deprivation of liberty,
even outside the s8 express powers.
Guardianship analysed
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Guardianship has (properly
understood) always given us a
means to promote a person’s
welfare – an implied statutory
power, subject only to judicial
review – see Marston 1997 and Re
F (2000) for a debate on this issue.
Guardianship analysed
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“True, as the judge below accepted, Section 8 of the 1983
Act, …does not confer upon the guardian any express
powers or duties to act in the best interests of the
patient. It can be seen in this regard to present a marked
contrast, no doubt an intended contrast, with the
legislative regime which it replaced. … But it seems to
me, as it seemed to Owen J below, implicit in Section 7
of the Act that the guardian is entitled in certain
respects to act so as to promote the welfare of the
patient. Owen J recognised, as I would too, that the
precise extent and consequence of such an implicit duty
to act for the welfare of the patient is not clear…
Guardianship in the eyes of the court…
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“I envisage that that may well need clarification at
some future date. For example, if there were good
reason to suppose that an authority was acting in
some totalitarian fashion or was not properly
having regard to the interests of its patients,
then it seems to me clear that someone would have
the standing, would have a sufficient interest to
bring the case before the court, so that the matter
could be properly investigated and the true extent of
the authority's discretion be clarified. “
And now the MCA best interests duty and cloak of
legal protection is NOT – for any steps short of
deprivation of liberty – in any sense - excluded by
the MHA regime.
The government’s new finalised MHA Code,
on choosing guardianship over the MCA
26.12 …guardianship may still be appropriate in such
cases if:
• there are other reasons – unconnected to the move to
residential care – to think that the patient might
benefit from the attention and authority of a guardian;
• there is a particular need to have explicit statutory
authority for the patient to be returned to the place
where the patient is to live should they go absent; or
• it is thought to be important that decisions about where
the patient is to live are placed in the hands of a single
person or authority – for example, where there have
been long-running or particularly difficult disputes
about where the person should live.
When not to use guardianship
26.13 However, it will not always be best to use
guardianship as the way of deciding where patients
who lack capacity to decide for themselves must
live. In cases which raise unusual issues, or where
guardianship is being considered in the interests of
the patient’s welfare and there are finely balanced
arguments about where the patient should live, it
may be preferable instead to seek a best interests
decision from the Court of Protection under the MCA.
Belinda’s comment: especially if a tenancy agreement
is involved because you cannot use guardianship to
force an incapacitated person to take a tenancy!!
The government’s view, in the MHA code of
practice, on the limitations on guardianship
26.29 The power to take or return patients to the place they are
required to live may be used, for example, to discourage
them from:
• living somewhere the guardian considers unsuitable;
• breaking off contact with services;
• leaving the area before proper arrangements can be made; or
• sleeping rough.
But it may not be used to restrict their freedom to come
and go so much that they are effectively being
detained.
26.30 The power to require patients to reside in a particular
place may not be used to require them to live in a situation in
which they are deprived of liberty, unless that is authorised
separately under the MCA. That authorisation will only be
possible if the patient lacks capacity to decide where to live.
If deprivation of liberty is authorised under the MCA, the
LSSA should consider whether guardianship remains
necessary, bearing in mind the guidance earlier in this
chapter. ”.
More about the pros and cons of
guardianship
26.32 …Nor does guardianship prevent an authorisation being
granted under the deprivation of liberty safeguards2 in the
MCA, if the person needs to be detained in a hospital in their
best interests in order to receive care and treatment, so long
as it would not be inconsistent with the guardian’s decision
about where the patient should live.
26.33 Otherwise, guardianship should not be used to require a
patient to reside in a hospital except where it is necessary for
a very short time in order to provide shelter while
accommodation in the community is being arranged.
While the reception of a patient into guardianship does not
affect the continued authority of an attorney or deputy
appointed under the MCA, such attorneys and deputies
will not be able to take decisions about where a person
subject to guardianship is to reside, nor take other
decisions which conflict with those of a guardian [within
their powers]. This is because the guardian’s powers are
expressly conferred to the exclusion of all others,
under the MH Act)
Changes to Guardianship
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Under the new Act, a person with learning disabilities, whilst
mentally disordered, because of the widening of the definition, still
won’t be able to ‘qualify’ for guardianship, unless the disability is
associated with abnormally aggressive or seriously irresponsible
conduct, on his part. But a person can be seriously irresponsible
due to their disability, even if they are being so well looked after
that nothing is being given a chance to happen. Autism is a
disorder in its own right, as well, so the exclusion from
guardianship of people with LDs need not apply to ASD sufferers.
Under other MHA 2007 changes, a Guardian will have powers to:
 Convey P to where s/he doesn’t want to go, using force if
necessary (s.18(7) and s.137 MHA)
 To insist they remain at that place (s.8(1)(a))
 Return P to that place if they leave without authority, using
force if necessary or the help of the police (s.18(4), s.137)
 Make P see professionals who may consider treatment if the
person is incapacitated
 Take P to a place where they could be given medical treatment
under MCA (s.8(1)(b) MHA and s.5 and s.6 MCA).
Changes to Guardianship
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Even if this were to amount to a deprivation of liberty,
it would be lawful protective custody:
 It would be done under ‘a procedure prescribed by
law’ (complying with art 5(1) ECHR)
 s.7 MHA grounds meet substantive and procedural
requirements for lawful detention of those of
unsound mind: Winterwerp v Netherlands
 P has access to an MHRT to challenge the
lawfulness of the applying the regime to him or her
– and an advocate to help, under the new MHA.
Choosing between formal guardianship, and
reliance on the MCA for certain steps
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Jones points out that there are good person - centred
reasons for using guardianship, when one could either use it
OR the MCA best interests power to move a person to
another home:
The responsible social services authority must provide for
visits to patients under guardianship, not less than every
three months; and one such visit per year must be by a s12
doctor
The nearest relative has protective powers in relation to
guardianship, whereas that person has no special role under
the MCA.
He points out that the specific legal authority given to the
authorities to convey patients under guardianship and to
return them to their place of required residence are good
public body based reasons for using guardianship too!
Thanks for listening!
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Belinda Schwehr
Care and Health Law
www.careandhealthlaw.com